Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”): (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company; (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary; (c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders; (d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries; (e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary; (f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary; (g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary; (h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary; (i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or (j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 5 contracts
Samples: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquireDuring the Designee Period, offer the Shareholder shall not and shall cause its Affiliates not to, without the prior written consent of the majority of the entire Board of Directors (excluding any representative or propose to acquiredesignee of the Shareholder), solicit an offer to sell or agree to acquire, either directly or indirectlyindirectly (including in a manner wilfully designed to circumvent the following provisions), alone or in concert with others:
(i) in any manner:
A. acquire, agree to acquire or make any public proposal to acquire (whether directly or indirectly, by purchase, tender offer, or exchange offer, through the acquisition or control ) any material assets of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company Parent or any Subsidiary, other than subsidiary of Parent; or
B. make any Share Acquisition unless after giving effect to the acquisition in Share Acquisition the aggregate of Shareholder and its Affiliates would Beneficially Own less than one-half of one percent 21.0% of the outstanding voting securities shares of Common Stock, with the Companynumber of outstanding shares calculated based on the number of shares reported outstanding by Parent in its most recent quarterly report on Form 10-Q or annual report on Form 10-K, as filed with the SEC;
(bii) make(A) propose to any Person or take substantial steps to effect or enter into any business combination, restructuring, recapitalization or in the sale or other disposition outside the ordinary course of business of any way participate in, directly material asset of Parent or indirectly, alone other extraordinary transaction involving Parent or in concert with others, any “solicitation” of its subsidiaries; (as such term is used in B) seek election to or seek to place a representative on the proxy rules Board of Directors except pursuant to the Securities and Exchange Commission promulgated rights granted pursuant to Section 14 of the Exchange Act6 hereof; or (C) of solicit proxies or shareholder consents or be a participant in any such solicitation for the purpose of seeking to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage control or influence in any manner whatsoever any person or entity with respect the Board of Directors except pursuant to the voting of any voting securities of the Company or any Subsidiaryrights granted pursuant to Section 6 hereof;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(diii) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act Group in connection with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible foregoing (other than a Group consisting of Shareholder and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillits Affiliates); or
(jiv) announce an intention to do, make or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having cause Parent to make a public announcement regarding any intention of the matters referred Shareholder to take an action which would be prohibited by any of the foregoing. provided, however, that the foregoing shall not restrict the ability of the Shareholder Designee from exercising his/her fiduciary duties as a director.
(b) Notwithstanding anything to the contrary in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to takeAgreement, any action inconsistent with the foregoingTransfers between Shareholder and any Affiliates shall not be prohibited or subject to Section 4.1.
Appears in 3 contracts
Samples: Shareholder Rights Agreement, Shareholder Rights Agreement (Centurylink, Inc), Shareholder Rights Agreement (Singapore Technologies Telemedia Pte LTD)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe Purchasers, unless specifically invited in writing by Warburg Pincus & Co., and Warburg Pincus Partners LLC, shall not, without the Board, acting by resolution approved by a majority of all members prior written consent of the Board, directly Company or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):its Board of Directors:
(a) acquire, offer offer, seek or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or indirectly (including acquiring beneficial ownership as defined in concert with othersRule 13d-3 under the Exchange Act), by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities Voting Stock of the Company or direct or indirect rights, warrants or options rights to acquire, or securities convertible into or exchangeable for, acquire any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities Voting Stock of the Company;
(b) make, or of any successor to or person in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules control of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesCompany, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, assets of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets division of the Company or of any Subsidiary;such successor or controlling person, provided, however, that the Purchasers, Warburg Pincus & Co., and Warburg Pincus Partners LLC may acquire in one or more transactions an aggregate number of shares of Voting Stock equal to the Permitted Amount.
(fb) arrangemake, or in any way participate, directly or indirectly, in any financing for “solicitation” of “proxies” to vote (as such terms are used in the purchase rules of the SEC), or seek to advise or influence any person or entity with respect to the voting of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets Voting Stock of the Company (other than in such Purchaser’s Representatives’ capacities as a member of the Company’s Board of Directors in a manner consist with his or any Subsidiaryher fiduciary duties);
(gc) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement announcement with respect to, or submit a proposal for or offer of (with or without conditions) (including to the Company’s Board of Directors), any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other extraordinary transaction involving the Company or any Subsidiaryof its securities or assets;
(hd) seekform, join or in any way participate in a 13D Group in connection with any of the foregoing;
(e) otherwise act or seek to control or influence the management or Board of Directors or policies of the Company, whether alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or others (other than in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any such Purchaser’s Representatives’ capacities as a member of the Board, Company’s Board of Directors in a manner consistent with his or propose any matter to be voted upon by the stockholders of the Company or any Subsidiaryher fiduciary duties);
(if) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in could reasonably be expected to require the Company having to make a public announcement regarding the possibility of any of the matters referred to events described in clauses (a) through (je) above;
(g) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this StandstillSection 3.1 in a manner that would require public disclosure; or
(h) direct or instruct any of their respective Subsidiaries, Representatives or Affiliates to take any such action. Notwithstanding the foregoing, if, at any time during the Standstill Period,
(i) any person or 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) acquires Beneficial Ownership of Voting Stock of the Company representing 40% or more of the then outstanding Voting Stock of the Company;
(ii) any person or 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) announces or commences a tender or exchange offer to acquire Voting Stock of the Company which, if successful, would result in such person or 13D Group owning, when combined with any other Voting Stock of the Company owned by such person or 13D Group, 50% or more of the then outstanding Voting Stock of the Company;
(iii) the Company enters into, or resolves to enter into, any merger, sale or other business combination transaction pursuant to which the outstanding shares of Common Stock would be converted into cash and/or securities and/or property of another person or 13D Group (other than any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives) or 50% or more of the outstanding shares of Common Stock as of immediately prior to such transaction would be owned by persons other than the then current holders of shares of Common Stock and any person or 13D Group which includes the Purchasers, their respective Subsidiaries or Representatives; then, except as otherwise intentionally takeprovided herein, the Standstill Period shall be suspended and tolled during the pendency of any such event with respect to the Purchasers, their respective Subsidiaries and Representatives and the provisions of subparagraphs (a) through (g) shall not be applicable to the Purchasers, their respective Subsidiaries and Representatives during the pendency of any such event. For the avoidance of doubt, the Standstill Period shall resume and be extended by an amount of time equal to the time during which such event was pending, and the provisions of subparagraphs (a) through (g) shall resume to be applicable to the Purchasers, their respective Subsidiaries and Representatives in the event that the provisions of (i) through (iii) cease to be applicable, such as, for example and without limitation, disposition of the Voting Stock of the Company to below 40% by the person or 13D Group, withdrawal of the tender or exchange offer by the person or 13D Group, or solicittermination of merger, sale or cause or encourage others to take, any action inconsistent with the foregoingother business combination transaction.
Appears in 3 contracts
Samples: Stockholders Agreement (Warburg Pincus Private Equity Viii L P), Stockholders Agreement (Warburg Pincus Private Equity Viii L P), Stockholders Agreement (Nuance Communications, Inc.)
Standstill. Executive Subject to the provisions of the sentence next following, the Investor agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonuntil January 1, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
1999 it and its Affiliates shall not (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any voting securities, direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants rights or options to acquire any assets voting securities, direct or indirect rights or options to acquire any voting securities, or securities or instruments convertible into voting securities, of the Company or any Subsidiary;
Company, (fb) arrangemake, or in any way participate, directly or indirectly, in any financing for "solicitation" of "proxies" to vote (as such terms are used in the purchase proxy rules of the SEC) securities of the Company, or seek to advise or influence any person or entity with respect to any voting of any securities of the Company, (c) form, join or in any way participate in a "group" within the meaning of Section 13(d)(3) of the Exchange Act, with respect to any voting securities of the Company, (d) make any public announcement with respect to or securities convertible make or exchangeable into submit a proposal or exercisable offer (with or without conditions) for any voting the securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other extraordinary transaction involving the Company or any Subsidiary;
of its Subsidiaries, (he) seeksubmit or effect any filing or application, or seek to obtain any permit, consent or agreement, approval or other action, required by or from any regulatory agency with respect to an acquisition of the Company or any of its securities or assets, (f) otherwise act alone or in concert with others, others to control, change or influence seek to control the management, the Board board of directors or policies of the Company; or (g) propose any of the foregoing unless and until such proposal is specifically invited by the Company. Based on the representations of Rothschild to the Company that Affiliates of Rothschild (which representation Rothschild hereby reaffirms) not under control of Rothschild have no access to any of the internal information or files of Rothschild and receive no information, recommendations or advice from Rothschild, the Company agrees that the prohibitions of the preceding sentence shall not apply to any SubsidiaryAffiliates of Rothschild that are not under the control of Rothschild and are engaged in the regular business of trading in publicly-traded securities, so long as such affiliates have not received, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate been given access to, the Board or the removal of any member of the BoardConfidential Information and have not received any instructions, recommendations or propose any matter advice pertaining to be voted upon by the stockholders an investment in or control of the Company or from any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal party having access to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingConfidential Information.
Appears in 3 contracts
Samples: Investment Agreement (Pacific Gulf Properties Inc), Investment Agreement (Five Arrows Realty Securities L L C), Investment Agreement (Five Arrows Realty Securities L L C)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonRestricted Period, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members each of the BoardTRT Persons will not, and will cause each of the TRT Persons’ Representatives not to, directly or indirectly, in do any manner (of the obligations pursuant to this Section 13 being referred to as, following during the “Standstill”):Restricted Period:
(a1) acquire(A) acquire or agree, offer or propose offer, seek, announce an intention to acquire, solicit an offer propose to sell acquire or agree enter into any arrangement or undertaking to acquire, directly or indirectlyownership (including, alone or but not limited to, beneficial ownership as defined in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Rule 13d-3 under the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangibleindebtedness or businesses of Purchaser or any subsidiary thereof, or (B) acquire or agree, offer, seek, announce an intention to acquire, propose to acquire or enter into any arrangement or undertaking to acquire (or request permission to do so), whether by means of a tender or exchange offer or otherwise, ownership of any Purchaser Securities, or any other economic interest in, any right to direct the voting or disposition of, or any other right with respect to (including from a third party), any Purchaser Securities (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities or any obligations measured by the price or value of any Purchaser Securities, including without limitation any swaps or other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the Company foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such party ) pursuant to any agreement, arrangement of understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; provided, however, that the foregoing limitation will not, by itself, be violated by (x) TRT’s ownership of the Offered Shares, or (y) Xxxxxx X. Xxxxxxx’x ownership of the Rowling Shares, provided that the TRT Persons and the Representatives of the TRT Persons do not engage in any transactions or take any other actions that are prohibited by any of the provisions of this Section 4.4.
(2) (A) seek or propose to influence or control the management, the Board of Directors or the policies of Purchaser or any Subsidiary subsidiary thereof or to obtain representation on the Board of Directors, (iiB) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangeengage, or in any way participate, directly or indirectly, in any financing for “solicitation” (as such term is defined in Rule 14a-1(l) under the purchase Exchange Act) of any voting securities proxies or securities convertible consents (whether or exchangeable into not relating to the election or exercisable for any voting securities or assets removal of the Company or any Subsidiary;
(g) otherwise actdirectors), alone or in concert with others, to seek to propose to the Company advise, encourage, or influence any Subsidiary or any of their respective stockholders or make any public statement Person with respect to the voting of any mergerPurchaser Securities (including in connection with the election of directors), business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, each case in opposition to control, change or influence the management, a recommendation of the Board of Directors; (C) initiate, propose or policies otherwise “solicit” (as such term is defined in Rule 14a-1(l) under the Exchange Act) stockholders of Purchaser for the approval of stockholder proposals, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise, in opposition to the recommendation of the Company Board of Directors; (D) initiate or propose any Subsidiarystockholder proposal, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise, or otherwise seek, alone or in concert with others, seek the election or appointment to to, or representation on, or to nominate or propose the nomination of any candidate to, the Board of Directors; (E) effect or attempt to effect the removal of any member members of the BoardBoard of Directors; or (F) induce or attempt to induce any other Person to initiate any such stockholder proposal related to Purchaser;
(3) make, effect, initiate, offer, seek, cause or propose any matter take-over bid, tender offer, merger, consolidation, exchange offer, recapitalization, reorganization, business combination, liquidation, dissolution or similar transaction, or any other extraordinary transaction, with or involving Purchaser or any subsidiary thereof, or otherwise related to be voted upon by the stockholders purchase or sale of or otherwise involving any Purchaser Securities or indebtedness, businesses or assets of Purchaser or any subsidiary thereof,
(4) form, join, or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Company Exchange Act) with respect to any Purchaser Securities in connection with any “election contest” with respect to the Board of Directors.
(5) make any demand to inspect the books and records of Purchaser or any Subsidiaryof its subsidiaries, including pursuant to Section 220(b) of the Delaware General Corporation Law;
(i6) make any publicly disclosed proposal, public statement, public inquiry seek or public disclosure of any intention, plan, or arrangement (whether written or oral) request permission to do anything inconsistent with any of the foregoingprovisions of this Section 4.4, request to amend or waive any of the provisions of this Section 4.4, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, foregoing or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or otherwise take any action that might result in the Company having may require Purchaser or any subsidiary thereof to make a public announcement regarding any of the matters referred to foregoing;
(7) have any discussions or communications, or enter into any arrangements, understanding, or agreements (whether written or oral) with, or advise, finance, assist, induce, or encourage, any third party either in clauses (a) through (j) connection or inconsistent with any of the provisions of this Standstill, or Section 4.4; or
(8) otherwise intentionally take, or solicit, take or cause or encourage others to take, any action inconsistent with any of the foregoingforegoing provisions of this Section 4.4.
Appears in 3 contracts
Samples: Repurchase Agreement, Repurchase Agreement (TRT Holdings Inc), Repurchase Agreement (Gaylord Entertainment Co /De)
Standstill. Executive agrees that (a) Unless otherwise pefrmitted by the provisions of this Section 5.1, for a period of 18 eighteen (18) months from the date of Executive’s termination of employment for any reasonhereof, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willInvestor shall not, unless specifically invited in writing by and Investor shall procure that its Affiliates shall not, without the Board, acting by resolution approved by a majority of all members prior written approval of the BoardBoard (including the affirmative vote of each of the STT Directors (as defined in the Articles) (acting consistently with their fiduciary duties)) or their Alternate Directors (as defined in the Articles), directly or indirectlyindirectly (whether acting alone, as a part of a group or otherwise in concert with others): (i) acquire, or enter into any agreement with any third party with respect to the acquisition of, additional Securities by Investor or its Affiliates (an “Acquisition Transaction”) that will result in Investor and its Affiliate beneficially owning, in the aggregate, more than six and 77,398/100,000 percent (6.77398%) of the Company’s outstanding share capital (calculated on a fully-diluted basis), (ii) advise, assist, act as a financing source for or otherwise invest in any manner other Person for the purpose described in the immediately preceding clause (i), (iii) grant any proxy, consent or other authority to vote with respect to any matters or deposit any of the obligations Subject Shares held by Investor in a voting trust or subject them to a voting agreement or other arrangement of similar effect, (iv) file with the Commission a proxy statement with respect to (x) an Acquisition Transaction or (y) the election of directors who were not nominated by the nominating committee of the Company’s Board of Directors, (v) issue, or cause to be issued, any public disclosure, statement or announcement (including the filing or furnishing of any document or report with the Commission or any other governmental agency) in support of or against any solicitation described in clause (iv), or (vi) publicly disclose any intention, plan or arrangement with respect to any of the foregoing. The Directors, when exercising their discretion in his/her approval or disapproval of any transaction proposed pursuant to this Section 13 being referred to as5.1(a), shall comply with their fiduciary duty and act in good faith in the best interest of the Company in making such determination.
(b) Unless otherwise permitted by the provisions of this Section 5.1, for a period of eighteen (18) months from the date hereof, the “Standstill”):
(a) acquireCompany shall not, offer or propose to acquireand the Company shall procure that the Group Companies shall not, solicit an offer to sell or agree to acquireexcept with the prior written consent of Investor, directly or indirectlyindirectly (whether acting alone, alone as a part of a group or otherwise in concert with others): (i) acquire, by purchase, tender offer, exchange offer, through or enter into any agreement with any third party with respect to the acquisition of, Investor Securities, (ii) advise, assist, act as a financing source for or control of another person or entityotherwise invest in any other Person for the purpose described in the immediately preceding clause (i), or otherwise(iii) publicly disclose any intention, plan or arrangement with respect to any of the foregoing; provided, however, that the Company, and any of its Affiliates, is permitted to hold or acquire Investor Securities that do not result in an aggregate ownership by the Company and its Affiliates of more than 4.99% of the outstanding amount of any class of publicly-listed securities (or any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options rights to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as acquire such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Actsecurities) of proxies or consents to voteCyrusOne Inc.; provided further that Investor, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of its Affiliates, is permitted to hold the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSubject Shares.
Appears in 3 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (GDS Holdings LTD), Investor Rights Agreement (CyrusOne Inc.)
Standstill. Executive agrees that for a period 10.1. From and after the Closing, without the prior consent of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority the Investor hereby agrees that until such time as the earlier to occur of all members (x) it ceases to Beneficially Own 5% of the BoardTotal Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in any manner (a collared hedging transaction of the obligations pursuant to this Common Stock following the conclusion of the period set forth in Section 13 being referred to as, the “Standstill”):9;
(ac) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, solicit an offer or announce any intention to sell effect or agree to acquire, directly cause or indirectly, alone participate in or in concert with othersany way knowingly assist, by purchaseor knowingly 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 Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender offer, or exchange offer, through merger or other business combination involving the acquisition or control of another person or entity, or otherwiseCompany, any direct of its Subsidiaries or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities assets of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent its Subsidiaries constituting a significant portion of the outstanding voting securities consolidated assets of the Company;
(b) makeCompany and its Subsidiaries, or in any way participate in, directly or indirectly, alone or in concert with others, (iii) any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Section 14 of Rule 14a-8 under the Exchange Act) Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of proxies Designations, otherwise seek the election or consents to vote, whether subject to or exempt from the proxy rulesappointment to, or seek to adviserepresentation on, encourage or influence the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any manner whatsoever voting trust or subject any person Voting Stock to any arrangement or entity agreement with respect to the voting of any Voting Stock that is inconsistent with the voting securities obligations of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryInvestor hereunder;
(f) arrangeexcept as expressly contemplated by this Agreement or the Certificate of Designations, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek representation on or to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change control or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiaryits Subsidiaries;
(ig) make form, join or in any publicly disclosed proposal, public statement, public inquiry or public disclosure way participate in a “group” (within the meaning of any intention, plan, or arrangement (whether written or oralSection 13(d) inconsistent with of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement Exchange Act) with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do Company involving any of the actions restricted or prohibited items described under clauses (a) through (jf) of this Standstill, or hereof;
(h) knowingly take any action that might which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the matters referred to in actions described under clauses (a) through (jf) of this Standstill, or hereof; or
(i) otherwise intentionally take, or solicit, take or cause or encourage others to take, any action inconsistent with any of the foregoingforegoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 3 contracts
Samples: Securities Purchase Agreement, Securities Purchase Agreement (Arthrocare Corp), Securities Purchase Agreement (OEP AC Holdings, LLC)
Standstill. Executive agrees that During the term of his employment and for a period of 18 six months from after the date of the Executive’s termination of employment for any reasonis terminated, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone indirectly or in concert with othersany other person, engage in any of the following:
(i) purchase, offer to purchase, or agree to purchase or otherwise acquire, by means of a purchase, tender offer, or exchange offer, through the acquisition business combination or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants other manner (including rights or options to acquireacquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable forfor Common Stock of the Company, that would result in the Executive, the Executive’s affiliates, and the members of any “group” of persons with which the Executive or his affiliates are acting in concert beneficially owning, in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting securities power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Subsidiaryof its affiliates, other than including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the acquisition in the aggregate vote of less than one-half any holder of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jiii) announce an intention to dobe employed by any person that, directly or to enter into any arrangement or understanding with others (whether written or oral) to dothrough its affiliates, or to finance, intentionally advise, enable, assist or encourage others to do engages in any of the actions restricted foregoing. Exercise of options, conversion of LTIP Units, vesting and delivery of shares of Common Stock pursuant to equity or prohibited under clauses (a) through (j) other awards, plans and arrangements and any other Common Stock received or otherwise acquired by the Executive in connection with or as a result of this Standstill, or take any action that might result in the Executive’s employment with the Company having or service on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) above such that the Company would be considered to make a public announcement regarding any be in “play” through no act of the matters referred Executive, the Executive will no longer be subject to in clauses (a) through (j) the limitations of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSections 7(d).
Appears in 3 contracts
Samples: Separation Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. Executive agrees that for a period of 18 months from Section 4.1. During the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardShareholder shall not, directly or indirectly, in any manner and shall cause its Representatives (to the obligations pursuant to this Section 13 being referred to as, extent acting on behalf of the “Standstill”):
(aShareholder) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireand Group Members not, directly or indirectly, alone to, without the prior written consent of, or in concert with otherswaiver by, the Company:
(a) subject to Section 4.2, acquire, offer or seek to acquire, agree to acquire or make a proposal (including any private proposal to the Company or the Board of Directors) to acquire, by purchase, tender offer, exchange offer, purchase or otherwise (including through the acquisition or control of another person or entity, or otherwiseBeneficial Ownership), any direct securities (including any Equity Securities or indirect beneficial interest in any voting securities Voting Securities) or Derivative Instruments, or direct or indirect rightsrights to acquire any securities (including any Equity Securities or Voting Securities) or Derivative Instruments, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent Subsidiary or Affiliate of the outstanding voting securities Company or any successor to or Person in Control of the Company, 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 Share Equivalents (and any securities (including any Equity Securities or Voting Securities) convertible into or exchangeable for Ordinary Share Equivalents) and Derivative Instruments with respect to Ordinary Share Equivalents, if, immediately following such acquisition, the collective Beneficial Ownership of Ordinary Share Equivalents of the Shareholder and its Group Members, as a group, would not exceed the Standstill Level;
(b) makeoffer, or seek to acquire, or participate in any way participate inacquisition of a majority of the consolidated assets of the Company and its Subsidiaries, directly taken as a whole;
(c) conduct, fund or indirectly, alone or otherwise become a participant in concert with others, any “solicitationtender offer” (as such term is used in Regulation 14D under the Exchange Act or the Israeli Companies Law) 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 the Company or its Subsidiaries or Affiliates; provided that nothing in this clause (d) shall preclude the Shareholder or its Representatives from engaging in discussions with the Company 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 knowingly encourage) any “solicitation” of “proxies” (as such terms are defined in Regulation 14A as promulgated by the SEC and assuming for this purpose that the Company was subject to the proxy rules of the Securities and Exchange Commission promulgated pursuant to under Section 14 of the Exchange Act) (including, in each case, similar concepts under Israeli law, including submission of proxies or consents to vote, whether subject to or exempt from the proxy rulespositions statements), or seek consent to advisevote any Voting Securities or any of the voting securities of any Subsidiaries or Affiliates of the Company (including through action by written consent), encourage or otherwise knowingly advise or influence in any manner whatsoever any person or entity Person with respect to the voting of any voting securities of the Company or any Subsidiaryits Subsidiaries or Affiliates;
(cf) initiatemake any public announcement with respect to, or solicit or submit a proposal for, or offer, seek, propose or indicate an interest in (with or without conditions) any merger, consolidation, business combination, “solicittender offer” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 Regulation 14D under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquireIsraeli Companies Law), offer to acquire recapitalization, reorganization, purchase or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any license of a material portion of the assets, tangible and intangibleproperties, securities or indebtedness of the Company or any Subsidiary or (ii) direct Affiliate of the Company, or indirect rightsother similar extraordinary transaction involving the Company, warrants or options to acquire any assets Subsidiary of the Company or any Subsidiary;
(f) arrangeof its securities or indebtedness, or in enter into any way participatediscussions, directly negotiations, arrangements, understandings or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) with any other Person regarding any of the foregoing;
(g) call or seek to call a meeting of shareholders of the Company or initiate any shareholder proposal or meeting agenda item for action of the Company’s shareholders, or seek election or appointment to or to place a representative on the Board of Directors or seek the removal of any director from the Board of Directors;
(h) form, join, become a member or in any way participate in a Group (other than with the Shareholder, any of its Group Members or any counterparty (other than a Prohibited Transferee) in connection with a Hedging Arrangement that complies with Section 2.1(c)(iv)) with respect to the securities of the Company 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, 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 wholly owned Subsidiaries, (ii) as part of a Hedging Arrangement that complies with Section 2.1(c)(iv) or (iii) 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 foregoingforegoing restrictions;
(k) knowingly take any action or cause or authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to take any action on its or make their behalf, that would reasonably be expected to require the Company or any of its Subsidiaries or Affiliates to publicly disclose any request of the foregoing actions or proposal the possibility of a business combination, merger or other type of transaction or matter described in this Section 4.1;
(l) knowingly advise, assist, arrange or otherwise enter into any discussions or arrangements with any third party with respect to amendany of the foregoing; or
(m) directly or indirectly, waive or terminate contest the validity of, any provision of this Standstill Section 4.1 (including this subclause) or seek permission Section 3.1 (whether by legal action or otherwise).
Section 4.2. The prohibition in Section 4.1(a) shall not apply to or make any public announcement with respect to any provision the activities of the StandstillShareholder or any of its Group Members 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
(jb) announce an intention to doacquisitions made in connection with a transaction or series of related transactions in which the Shareholder or any of its Group Members acquires a previously unaffiliated business entity that Beneficially Owns Equity Securities, Voting Securities or Derivative Instruments, or to enter into any arrangement or understanding with others (whether written or oral) to dosecurities convertible into, or to financeexercisable or exchangeable for, intentionally adviseEquity Securities, enableVoting Securities or Derivative Instruments, assist or encourage others to do any at the time of the actions restricted consummation of such acquisition, provided that in connection with any such acquisition, (i) the Shareholder or prohibited under clauses such applicable Group Member, as the case may be, either (aA) through 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 (j120) 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 Share Equivalents in excess of the Standstill Level following such acquisition, and (ii) prior to the disposition thereof, such Ordinary Share Equivalents or other Voting Securities remain subject to the terms of this Standstill, or take any action that might result Agreement in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingall respects.
Appears in 3 contracts
Samples: Stockholders Agreement (Allergan PLC), Shareholder Agreement (Allergan PLC), Shareholder Agreements (Teva Pharmaceutical Industries LTD)
Standstill. Executive The Stockholder agrees that that, for a period of 18 months from the date of Executive’s termination of employment for any reasonhereof, neither Executive nor the Stockholder will not, and will not cause or permit any of his its directors, officers, partners, employees, representatives, financial, legal, accounting and other advisers and agents, including persons who after the date of this Agreement cease to be within one of the foregoing categories (collectively, “Representatives”) or affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited associates (as such terms are defined in writing by Rule 12b-2 under the Board, acting by resolution approved by a majority of all members of the Board, Exchange Act) to (i) directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) indirectly acquire, offer or offer, propose to acquire, solicit an offer to sell or agree to acquire, directly any securities, debt obligations or indirectly, alone assets (or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities interests therein) of the Company or any Subsidiaryof its subsidiaries or any rights or options to acquire any such securities, debt obligations or assets (for purposes hereof, “securities” shall include, without limitation, (x) all rights to acquire securities pursuant to the exercise of any rights in connection with any option, warrant, convertible or exchangeable security or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (y) any economic interest relating to securities, including without limitation, pursuant to a cash settled option or other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) makederivative security, contract or instrument in any way related to the price of the underlying security), (ii) participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules solicitation of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesproxies, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting vote of any voting person, regarding any securities or debt obligations of the Company or any Subsidiary;
of its subsidiaries, (ciii) initiateengage, or offer, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectlyengage, in any financing for the purchase of any voting securities merger or securities convertible other business combination or exchangeable into or exercisable for any voting securities or assets of the Company acquisition transaction or any Subsidiary;
(g) otherwise act, alone tender or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender exchange offer, exchange offerrecapitalization, restructuring, reorganization, dissolution, liquidation, recapitalization or any purchase or sale of any material amount of assets or equity or debt securities or other transaction involving indebtedness of or regarding the Company or any Subsidiary;
of its subsidiaries, (hiv) seekseek or propose to influence or control the Company’s management or policies, alone or in concert with others, to control, change or influence including the management, the Board or management and policies of the Company its subsidiaries, (v) advise, assist, encourage, finance or invest in any Subsidiary, or otherwise seek, alone or person in concert connection with others, election or appointment to or representation on, or to nominate or propose the nomination any of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or (vi) disclose any request plan, intention or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted foregoing, (vii) make any communications with the Company or prohibited under clauses its Representatives that could require the Company to make any public announcement or (aviii) through (j) make any request to waive or amend any provision of this Standstill, agreement or to permit you to take any action that might result specified herein, in each case without the prior written approval of the Company. Nothing in this paragraph shall be deemed to prevent the Stockholder’s Representatives from engaging, in the Company having to make a public announcement regarding any ordinary course of business, in brokerage, asset management, trust, underwriting, market making and other similar financial services ordinary course business activities involving securities of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
Appears in 3 contracts
Samples: Stockholder Agreement (Gramercy Capital Corp), Agreement for Sale of Membership Interests (KBS Real Estate Investment Trust, Inc.), Agreement for Sale of Membership Interests (Gramercy Capital Corp)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination of employment for any reasonthis Agreement until the Expiration Date (such period, neither Executive nor any of his affiliates or persons or entities the “Standstill Period”), the Investors will not, and will cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) not to, directly or indirectly, in any manner (absent prior express written invitation or authorization by the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or engage in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange ActSEC) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities of the Company directors or any Subsidiary;
(c) initiate, propose other matter or proposal or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents consents;
(b) knowingly encourage or matters presented advise any other Person or assist any Person in so encouraging or advising any Person with respect to the Companygiving or withholding of any proxy, consent or other authority to vote (other than such encouragement or advice that is consistent with Company management’s recommendation in connection with such matter);
(c) form, join or its Subsidiaries’ stockholdersact in concert with any “group” as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any Voting Securities, other than solely with Affiliates of the Investors with respect to Voting Securities now or hereafter owned by them;
(d) form(i) engage in, join or become a party to, any way participate in a “group” within the meaning swap or hedging transaction or other derivative agreement of Section 13(d)(3) of the Exchange Act any nature with respect to Voting Securities or (ii) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any voting securities third party in the acquisition of, any Voting Securities, or rights or options to acquire any Voting Securities of the Company 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 clause (ii) if such acquisition or transaction would result in the SubsidiariesInvestors having beneficial ownership of greater than 9.99% of the Company’s outstanding common stock;
(e) acquiresell, offer to acquire or agree to acquiresell, directly or indirectly, alone through swap or in concert with others, by purchase, exchange hedging transactions or otherwise, (i) any of voting rights decoupled from the assets, tangible and intangible, underlying common stock of the Company or held by the Investors to any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryThird Party;
(f) arrange, make or in any way participate, directly or indirectly, in any financing for tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the purchase Company or any of any voting its subsidiaries or the Company’s securities or securities convertible or exchangeable into or exercisable for any voting securities or a material amount of the assets of the Company and its subsidiaries, taken as a whole (each, an “Extraordinary Transaction”), it being understood and agreed that the foregoing shall not restrict the Investors from tendering shares, receiving payment for shares or otherwise participating in any Subsidiary;
(g) otherwise actsuch transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board; or make, directly or indirectly, any proposal, either alone or in concert with others, to seek to propose to the Company or any Subsidiary or the Board that would reasonably be expected to require a public announcement regarding any of their respective stockholders the types of matters set forth above in this paragraph;
(g) enter into a voting trust or make proxy, arrangement or agreement or subject any public statement Voting Securities to any voting trust or proxy, arrangement or agreement, in each case other than solely with other Affiliates of the Investors, with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization Voting Securities now or hereafter owned by them and other transaction involving than granting proxies in solicitations approved by the Company or any SubsidiaryBoard;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise (i) seek, alone or in concert with others, election or appointment to to, or representation on, the Board, or to nominate or propose the nomination of of, or recommend the nomination of, any candidate toto the Board, except as set forth herein, or (ii) seek, alone or in concert with others, the Board removal or the removal resignation of any member of the Board, or propose any matter to be voted upon by Board (other than the stockholders of the Company or any SubsidiaryNew Director);
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure be the proponent of any intention, plan, stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or arrangement otherwise);
(whether written or oralj) inconsistent with the foregoing, or make or disclose any request for stock list materials or proposal other books and records of the Company under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for shareholder access to amend, waive or terminate any provision of this Standstill or seek permission to or books and records;
(k) make any public announcement statement or public proposal with respect to (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 other material change in the Company’s management, business 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 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 12(g)(4) of the Exchange Act;
(l) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of 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, however, that for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any provision of proceeding initiated by, or on behalf of, the StandstillCompany against a Restricted Person, or (D) responding to or complying with a validly issued legal process;
(m) enter into any negotiations, agreements or understandings with any Third Party to take any action that the Investors are prohibited from taking pursuant to this paragraph 6; or
(jn) announce an intention make any request or submit any proposal to do, amend or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of waive the actions restricted or prohibited under clauses (a) through (j) terms of this StandstillAgreement, or take any action that might in each case which would reasonably be expected to result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, such request or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingproposal.
Appears in 3 contracts
Samples: Investment Agreement (Cooperman Leon G), Letter Agreement (Glen Capital Partners Focus Fund, L.P.), Board Matters Agreement (Lionbridge Technologies Inc /De/)
Standstill. Executive agrees that for a period of 18 months from (a) During the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of each Wynnefield Party shall not, and shall cause his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Representatives not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectlyseek, alone or in concert with others, by purchase(A) to call a meeting of stockholders, tender offer(B) representation on the Board, exchange offer, through except as specifically contemplated in Section 1 of this Agreement or (C) the acquisition or control removal of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities member of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyBoard;
(bii) makesolicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the shares of the Common Stock, or in any way participate infrom the holders of the shares of Common Stock, directly or indirectly, alone or in concert with others, any become a “solicitationparticipant” (as such term is used defined in the proxy rules Instruction 3 to Item 4 of the Securities and Exchange Commission Schedule 14A promulgated pursuant to Section 14 of under the Exchange Act) of proxies in or consents to voteassist, whether subject to or exempt from the proxy rulesencourage, or seek to advise, encourage advise or influence any Third Party (as defined below) in any manner whatsoever any person or entity with respect to the voting “solicitation” of any voting securities of the Company proxy, consent or any Subsidiary;
(c) initiate, propose or “solicit” other authority (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 terms are defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate influence that is consistent with the CompanyBoard’s or its Subsidiaries’ stockholders or others recommendation in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholderssuch matter);
(diii) form, (A) form or join or any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities shares of Common Stock (for the avoidance of doubt, excluding any group composed solely of the Company Wynnefield Parties and their Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Subsidiaries;
Company’s stockholders (eother than to the Wynnefield Parties and their Affiliates and the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) acquire, offer to acquire or (C) agree to acquire, directly deposit or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) deposit any shares of the assets, tangible and intangible, of the Company Common Stock or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any such shares of Common Stock in any voting trust or similar arrangement (other than (x) to the Wynnefield Parties and their Affiliates or the named proxies included in the Company’s proxy card for any stockholder meeting and (y) customary brokerage accounts, margin accounts, prime brokerage accounts and the like, in each case, of the Wynnefield Parties and their Affiliates);
(iv) execute any written consent as a stockholder with respect to the Company or its Common Stock, except as contemplated by this Agreement;
(v) without the approval of the Board, separately or in conjunction with any Third Party 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, publicly (including in communications to the media) propose or support or effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other similar business transaction involving the Company or a material amount of the assets or businesses of the Company or actively encourage, initiate or support any other Third Party in any such activity; provided that the Wynnefield Parties shall be permitted to sell or tender their shares of Common Stock or other Voting Securities, and otherwise receive consideration, pursuant to any such transaction; and provided further that if a Third Party (not a Party or an Affiliate of a Party) commences an unsolicited tender offer or exchange offer for all of the outstanding shares of Common Stock or other Voting Securities that is recommended by the Board, then the Wynnefield Parties shall similarly be permitted to commence a tender offer or exchange offer for all of the outstanding shares of Common Stock or other Voting Securities at the same or higher consideration per share, unless the decision of the Board to recommend such Third Party unsolicited tender offer or exchange offer is supported by a majority of Wynnefield Designees serving on the Board;
(vi) present at any annual meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by the stockholders;
(vii) seek to have the Company waive, amend or modify any provisions of the Company’s Certificate of Incorporation or Bylaws;
(viii) make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or make any request pursuant to Rule 14a-7 under the Exchange Act or otherwise, except as is reasonably necessary to enable the Wynnefield Parties to effect a tender offer or exchange offer permitted under Section 5(a)(v);
(ix) institute, solicit or join, as a party, or remain as a class member in any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including derivative actions), other than (A) litigation by the Wynnefield Parties to enforce the provisions of this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Wynnefield Parties or Xxxxxx Xxxx and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent any member of the Wynnefield Parties from responding to or complying with a validly issued legal process (and the Company agrees that this Section 5(a)(ix) shall apply mutatis mutandis to the Company and its directors, officers, partners, members, employees, agents (in each case, acting in such capacity) and Affiliates with respect to the Wynnefield Parties);
(x) comment publicly (including in communications to the media) concerning the Company’s management, policies, strategy, operations, financial results or affairs or any transactions involving the Company or any of its subsidiaries, except (i) with respect to any Extraordinary Transaction that has not been approved by a majority of the Wynnefield Designees on the Board, (ii) with respect to the Wynnefield Parties’ commencing of a tender offer or exchange offer in accordance with Section 5(v), and (iii) as otherwise expressly permitted by this Agreement;
(xi) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to rights decoupled from the Company or any Subsidiary or underlying securities held by any of their respective stockholders or make any public statement with respect the Wynnefield Parties to any mergerperson in a private transaction (or a series of related private transactions) that is not (A) a party to this Agreement, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(hB) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any a member of the Board, (C) an officer of the Company, or propose (D) an Affiliate of any matter Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) that would result in the Wynnefield Parties selling in excess of 4.9% of the shares of Voting Securities beneficially owned by the Wynnefield Parties at such time, other than to a Third Party that agrees to be voted upon bound by the provisions of Section 5 of this Agreement during the term of this Agreement; or
(xii) publicly disclose, except as may be required by applicable law, any request that the Company or any directors, officers, partners, members, employees, agents or Affiliates of the Company, directly or indirectly, amend or waive any provision of this Agreement (including this Section 5 (a)(xii)). Notwithstanding anything to the contrary contained in this Xxxxxxx 0, xxxx of the Wynnefield Parties nor their respective Affiliates shall be prohibited or restricted from: (A) communicating privately with the Board or any officer or director of the Company, in the manner set forth for communicating with the Company in the Company Policies, 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 Wynnefield Parties or their respective Affiliates, the Company or its Affiliates or any Third Party, subject in any case to any confidentiality obligations to the Company 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 Wynnefield Party, provided that a breach by such Parties of this Agreement is not the cause of the applicable requirement; (C) privately communicating to any of their potential investors or investors factual information regarding the Company, provided that such communications are subject to reasonable confidentiality obligations and are not otherwise reasonably expected to be publicly disclosed; or (D) responding to or complying with a validly issued legal process.
(b) The provisions of this Section 5 shall not limit in any respect the actions of any director of the Company in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to the Company and its stockholders and the Company Policies. Except as otherwise provided in this Agreement, the provisions of this Section 5 shall also not prevent the Wynnefield Parties from freely voting their respective shares of Common Stock.
(c) During the Standstill Period, each Wynnefield Party shall refrain from taking any actions which could have the effect of encouraging, assisting or influencing other stockholders of the Company or any Subsidiary;other persons to engage in actions which, if taken by such Party, would violate this Agreement.
(d) Anything to the contrary in this Section 5 or elsewhere in this Agreement (including Section 2) notwithstanding, the Wynnefield Parties shall not be prohibited from (i) make nominating directors for election at the 2021 Annual Meeting, (ii) submitting proposals for consideration by stockholders at the 2021 Annual Meeting; (iii) soliciting proxies for the election of its director nominees or approval of its stockholder proposals at the 2021 Annual Meeting, in compliance with Regulation 14A under the Exchange Act; (iv) requesting that a proposal for consideration by stockholders at the 2021 Annual Meeting be included in the Company’s proxy materials for the 2021 Annual Meeting, in compliance with Rule 14a-8 under the Exchange Act; or (v) making any publicly disclosed proposalpublic or private communication in connection with any of the foregoing, in compliance with Rule 14a-9 and any other applicable provision of Regulation 14A under the Exchange Act. Anything to the contrary in Section 2 or elsewhere in this Agreement notwithstanding, the Company shall not be prohibited from (i) soliciting proxies in opposition to any nomination, solicitation or proposal permitted to be made by the Wynnefield Parties pursuant to this Section 5(d), in compliance with Regulation 14A under the Exchange Act or (ii) making any public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent private communication in connection with the foregoing, or make or disclose in compliance with Rule 14a-9 and any request or proposal to amend, waive or terminate any other applicable provision of this Standstill or seek permission to or make any public announcement with respect to any provision of Regulation 14A under the Standstill; orExchange Act.
(je) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any The provisions of the actions restricted or prohibited under clauses (ai) through (jxii) of this Standstill, or take any action that might result in Section 5(a) shall cease to apply following the Company having to make a public announcement regarding any of an Extraordinary Transaction that has been approved by the Board and which is opposed by a majority of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with Wynnefield Designees serving on the foregoingBoard.
Appears in 3 contracts
Samples: Settlement Agreement (Wynnefield Partners Small Cap Value Lp I), Settlement Agreement (MVC Capital, Inc.), Settlement Agreement (MVC Capital, Inc.)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonEffective Period, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members no member of the BoardInvestor Group or the Investor Designee shall, directly or indirectly (and each member of the Investor Group shall cause its respective Affiliates and Associates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities candidates for election as directors of the Company or any Subsidiary, (other than submissions to the acquisition in the aggregate of less than one-half of one percent NCG Committee for election of the outstanding voting securities Investor Designee or the Independent Director to the Board); provided however, that this Section shall not prohibit any members of the CompanyInvestor Group or their Affiliates and Associates from engaging in private non-public communications with respect to such candidates with other members of the Investor Group and their respective Affiliates and Associates (as long as such communications do not become public);
(b) propose any shareholder proposals or proxy resolutions or make any proposal regarding nominees for director for approval by the Company’s stockholders,
(c) call or seek to have called any special meeting of the stockholders;
(d) conduct any proxy solicitations with respect to the voting of Voting Securities (as defined below) against the recommendation of the Board regarding the election of directors or solicit proxies or written consents of stockholders, or any other person with the right to vote or power to give or withhold consent in respect of the Voting Securities, or conduct, encourage, participate or engage in any other type of referendum (binding or non-binding) with respect to, or from the holders of Voting Securities or any other person with the right to vote or power to give or withhold consent in respect of the Voting Securities, make, or in any way participate in, directly or indirectly, alone or engage in concert with others(other than by voting its shares of Voting Securities in a manner that does not violate this Agreement), any “solicitation” of any proxy, consent or other authority to vote any Voting Securities, with respect to any matter, or become a participant in any contested solicitation with respect to the Company, including without limitation relating to the removal or the election of directors;
(e) form or join in a partnership, limited partnership, syndicate or other group, including without limitation a group as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to defined under Section 14 13(d) of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the Common Stock, or otherwise support or participate in any effort by a third party with respect to the matters set forth in Section 3, or deposit any shares of Common Stock in a voting trust or subject any shares of Common Stock to any voting agreement, other than solely with other members of the Investor Group and/or their Affiliates and Associates with respect to the shares of Common Stock now or hereafter owned by them or pursuant to this Agreement;
(f) without the prior approval of the Board contained in a written resolution of the Board, (x) either directly or indirectly for itself or its Affiliates, 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, effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or (y) except as set forth in the next sentence, in any way knowingly support, assist or facilitate any other person to effect or seek, offer or propose to effect, or cause or participate in, any (i) tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries or affiliates; (ii) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Company or any Subsidiary;
(c) initiateof its subsidiaries or affiliates, propose except for lawful acquisitions of Common Stock through the market or “solicit” (as such term is used in privately negotiated acquisitions in the proxy rules normal course of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Actbusiness, or otherwise(iii) any form of restructuring, recapitalization or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act similar transaction with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary of its subsidiaries or affiliates.
(g) make, or cause to be made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the Company, its officers or its directors or any person who has served as an officer or director of their respective stockholders the Company on or make following the date of this Agreement: (i) in any public statement document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview). Notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall in any way limit (i) the Investor Designee’s ability to fully participate and communicate freely with the Company’s other directors and committee members; or (ii) the Investor Group’s rights as a stockholder to freely vote its securities on any matter other than with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
election of directors (h) seek, alone or in concert with others, as to control, change or influence which the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent Investor Group shall comply with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of terms hereof during the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingEffective Period).
Appears in 2 contracts
Samples: Investor Agreement (Iteris, Inc.), Investor Agreement (Relm Wireless Corp)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe Seller Holdco Parties shall not, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardand shall direct their Affiliates not to, directly or indirectly, in any manner (without the obligations pursuant to this Section 13 being referred to as, prior written consent of the “Standstill”):Company:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly by purchase or indirectlyotherwise, Beneficial Ownership of any Equity Interests of the Company (including any rights, options or other derivative securities or contracts or instruments to acquire such ownership that derives its value from (in whole or in part) such Equity Interests (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combinations of the foregoing)) other than: (A) as a result of any stock split, stock dividend or distribution, subdivision, reorganization, reclassification or similar capital transaction involving Equity Interests, (B) receipt of any Seller Holdco Issued Earnout Shares, or (C) pursuant to or in connection with a Permitted Transfer or a Permitted Loan; provided, that no Seller Holdco Party shall be in breach of this Section 4.2(a) as a result of the acquisition by any Seller Holdco Board Designee of any Equity Interests of the Company pursuant to (x) the grant or vesting of any equity compensation awards granted by the Company to any Seller Holdco Board Designee, or (y) the exercise of any stock options, restricted stock units, or similar awards relating to any Equity Interests of the Company granted by the Company to any Seller Holdco Board Designee;
(b) propose or make any public announcement or public offer with respect to any acquisition, merger, business combination, recapitalization, reorganization or other similar extraordinary transaction involving the Company or any of its Subsidiaries (unless such transaction is approved or affirmatively recommended by the Board);
(c) make, knowingly encourage, or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act) to vote any shares of Company Common Stock, or seek to advise or influence any Person with respect to the voting of, any shares of Company Common Stock (other than, in each case, in accordance with, and as permitted by, Section 3.1);
(d) seek election to, or seek to place a representative on, the Board, or seek the removal of any member of the Board, or otherwise act, alone or in concert with others, by purchaseto seek representation or to control or influence the management, exchange the Board or otherwise, (i) any policies of the assetsCompany (other than with respect to (A) the election or removal of a Seller Holdco Board Designee in accordance with, tangible and intangibleas permitted by, Section 2.1 or (B) voting (including by written consent) in accordance with, and as permitted by, Section 3.1);
(e) call, or seek to call, a meeting of the stockholders of the Company or initiate any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets stockholder proposal for action by stockholders of the Company or any SubsidiaryCompany;
(f) arrangeform, join or in any way participate, directly participate in a Group with respect to Equity Securities or indirectly, in discuss with any financing for third party the purchase potential formation of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets a Group (other than a Group consisting solely of the Company or any SubsidiarySeller Holdco Parties);
(g) otherwise act, alone or in concert with others, to seek to propose to control or influence the management or the policies of the Company (for the avoidance of doubt, excluding any such act in their capacity as a commercial counterparty, customer, supplier or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiarylike);
(h) seekadvise or knowingly assist or encourage or enter into any discussions, alone negotiations, agreements or arrangements with any other Persons in concert connection with others, to control, change or influence the management, the Board or policies any of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiaryforegoing activities;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillforegoing activities, or knowingly take any action that might result in a Seller Holdco Party knows would require the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through foregoing activities; or
(j) contest the validity of this StandstillSection 4.2; it being understood and agreed that this Section 4.2 shall not limit (A) the ability of each Seller Holdco Board Designee to exercise his or her legal duties or otherwise act in his or her capacity as a Director or a member of a Committee, (B) the ability of a Seller Holdco Party to vote (including by written consent) or Transfer its Seller Holdco Issued Shares as permitted under the terms of this Agreement, participate in rights offerings made by the Company to all holders of Company Common Stock, receive any dividends or similar distributions with respect to any Equity Interests of the Company, or otherwise intentionally take(C) a Seller Holdco Party or any of its Affiliates from making to the Board or the Chief Executive Officer of the Company any proposal regarding a strategic transaction involving the Company, or solicit, or cause or encourage others which proposal is made in a confidential manner and is not reasonably expected to take, require the Company to make any action inconsistent with the foregoingpublic disclosure.
Appears in 2 contracts
Samples: Stockholders Agreement (Edgio, Inc.), Stockholders Agreement (Limelight Networks, Inc.)
Standstill. Executive The Receiving Company agrees that for a period of 18 commencing on the date hereof and terminating on the date that is eighteen months from the date of Executive’s termination of employment for any reasonhereof, neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance its Restricted Affiliates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardCompany, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):manner:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any more than two percent (2%) of the voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any more than two percent (2%) of the voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits subsidiaries;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiaryof its subsidiaries;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiariesany of its subsidiaries;
(ed) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any material portion of the assets, tangible and or intangible, of the Company or any Subsidiary of its subsidiaries or (ii) direct or indirect rights, warrants or options to acquire any material portion of the assets of the Company or any Subsidiaryof its subsidiaries, except for such assets as are then being offered for sale by the Company or any of its subsidiaries, including those offered in the ordinary course of business;
(fe) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiaryof its subsidiaries which are prohibited by clauses (a) or (d) of this Section 5, except for such assets as are then being offered for sale by the Company or any of its subsidiaries;
(gf) otherwise actotherwise, alone or in concert with others, to seek to propose to the Company or any Subsidiary of its affiliates or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, restructuring or recapitalization or other transaction involving with the Company or any Subsidiary;
(h) of its subsidiaries or seek, alone or in concert with others, to control, change or influence the management, the Board board of directors or policies of the Company or any Subsidiary, of its subsidiaries or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose any person as a director who is not nominated by the nomination of any candidate to, the Board or the removal of any member of the Boardthen incumbent directors, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiaryof its subsidiaries; provided that the foregoing clause (f) shall not be construed to restrict the Receiving Company from taking (or refraining from taking) any action in the ordinary course of its commercial relationship with the Company under the Commercial Agreements or otherwise;
(ig) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillSection 5; or
(jh) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (jg) of this StandstillSection 5; provided that, or take any action that might result in notwithstanding anything to the Company having to make a public announcement regarding any of the matters referred to contrary in clauses (a) through (jh) of this StandstillSection 5, if (1) a third party or group (A) publicly announces its intention to commence or commences a tender or exchange offer for at least 20% of the outstanding capital stock of the Company or (B) otherwise acquires at least 15% of the outstanding capital stock of the Company, (2) a third party publicly announces or commences a proxy contest with respect to the election of any directors of the Company in support of the third party’s proposal or offer relating to the foregoing, or otherwise intentionally take(3) the Company enters into an acquisition or business combination (or an agreement related thereto) in which (A) the security holders of the Company would not own a majority of the surviving entity, (B) the Company is selling all or substantially all of the Company’s assets or (C) any person or group of persons would acquire, directly or indirectly, (I) beneficial ownership of (x) 50% or more of the Company’s outstanding capital stock, (y) securities convertible into more than 50% of the Company’s outstanding capital stock or (z) any options, warrants or other rights to acquire more than 50% of the Company’s outstanding capital stock, or solicit(II) control of the Company (within the meaning of Rule 405 under the Securities Act of 1933), or cause or encourage others then the Receiving Company shall be entitled to take, take any action inconsistent with of the foregoingactions set forth in clauses (a) through (h) of this Section 5.
Appears in 2 contracts
Samples: Confidentiality Agreement (Vital Images Inc), Confidentiality Agreement (Magenta Corp)
Standstill. Executive Each Investor agrees that for a period of 18 months that, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period, neither Executive it nor any of his affiliates its Affiliates or persons Associates or entities acting at his direction or with his assistance Family Members will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates and Family Members not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asmanner, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting alone or in concert with others, take any of the following actions or advise, recommend, request, encourage, solicit, influence or induce any other person to take any of the following actions, or announce any intention to take any of the following actions:
(a) submit any stockholder proposal pursuant to Rule 14a-8 promulgated by purchasethe Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, tender offer, exchange offer, through as amended (the acquisition or control of another person or entity“Exchange Act”), or otherwise, or any direct notice of nomination or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquireother business for consideration, or securities convertible into or exchangeable for, nominate any voting securities of candidate for election to the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyBoard;
(b) make, or in any way participate inengage, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject to or exempt from the proxy rules, induce or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of any voting securities stock of the Company (including any withholding from voting) or grant a proxy with respect to the voting of any Subsidiaryvoting stock of the Company to any person other than to the Board or persons appointed as proxies by the Board;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant seek to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwiseto request the call of, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with a special meeting of the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) make a request for a list of the Company’s stockholders or for any books and records of the Company;
(e) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any the voting securities stock of the Company (other than a “group” that consists solely of all or some of the Subsidiaries;
(e) acquire, offer persons parties to acquire this Agreement or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company their respective Affiliates or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryAssociates);
(f) arrange, or in deposit any way participate, directly or indirectly, in any financing for the purchase shares of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets stock of the Company in a voting trust or similar arrangement or subject any Subsidiaryshares of voting stock of the Company to any voting agreement or pooling arrangement, other than any such voting trust, arrangement or agreement solely among the Investors and otherwise in accordance with this Agreement;
(g) otherwise act, alone vote for any nominee or in concert with others, to seek to propose nominees for election to the Company Board, other than those nominated or any Subsidiary or any supported by the Board not in violation of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryterms of this Agreement;
(h) seekexcept as specifically provided in Section 1 of this Agreement, alone seek to place a representative or in concert with othersother Affiliate, to control, change Associate or influence the management, nominee on the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or seek the removal of any member of the Board or a change in the size or composition of the Board or the committees of the Board;
(i) acquire or agree, offer, seek or propose to acquire, or propose any matter cause to be voted upon by acquired, ownership (including beneficial ownership) of any of the stockholders assets or business of the Company or any Subsidiaryrights or options to acquire any such assets or business from any person;
(j) other than at the express written request of the Board, 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 structure or composition of the Board, change in the executive officers of the Company, change to the Company’s organization documents, change in capital structure, recapitalization, dividend or distribution or change in dividend or distribution policy, 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; provided, however, nothing herein shall limit the ability of the Investors to disclose, publicly or otherwise, how it intends to vote with respect to any announced tender offer, exchange offer, merger, consolidation, business combination or other change-of-control transaction that is being submitted for the approval of shareholders, and the reasons therefor, so long as any such activity is otherwise in compliance with the requirements of this Agreement;
(k) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive the terms of this Agreement; provided that the Investors may make confidential requests to the Board to amend, modify or waive any provision of this Section 3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure of such request by the Company, the Investors or any other person;
(l) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions), other than to enforce the provisions of this Agreement;
(m) take any action challenging the validity or enforceability of any provisions of this Section 3; or
(n) enter into any negotiations, discussions, agreement, arrangement or understanding with any person concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the Investors from: (A) communicating privately with the Board or the Chief Executive Officer 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, (B) communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Section 3, or (C) 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 the Investors or any of their respective Affiliates or Associates, provided that a breach by Investor of this Agreement is not the cause of the applicable requirement. As used in this Agreement:
(i) make any publicly disclosed proposal, public statement, public inquiry the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act and shall include persons who become Affiliates or public disclosure Associates of any intention, plan, or arrangement (whether written or oral) inconsistent with person subsequent to the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision date of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Agreement;
Appears in 2 contracts
Samples: Nomination and Standstill Agreement (Hill International, Inc.), Nomination and Standstill Agreement (Hill International, Inc.)
Standstill. Executive agrees that for a period of 18 months from From the date of Executive’s termination of employment for any reasonthis Agreement until the first-year anniversary hereof (such period, neither Executive nor any of his affiliates or persons or entities the “Restricted Period”), with respect to the Company, each Blackwells Party shall not, and shall cause its Affiliates and their respective principals, directors, members, general partners, officers, employees, consultants and agents and representatives acting at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) not to, directly or indirectly, in any manner (absent prior express written invitation or authorization by the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or engage in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the U.S. Securities and Exchange Commission promulgated pursuant (the “SEC”), but without regard to Section 14 of the Exchange Act) exclusion set forth in Rule 14a-1(l)(2)(iv)), involving the Company, of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities of the Company directors or any Subsidiary;
(c) initiate, propose other matter or proposal or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate in any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents consents;
(b) knowingly encourage, advise or matters presented influence any other Person, or knowingly assist any other Person in so encouraging, advising or influencing any other Person, (i) with respect to the Companyvoting or the giving or withholding of any proxy, consent or other authority to vote involving the Company or the taking of any other action with respect to such Person’s Voting Securities or its Subsidiaries’ stockholders;(ii) in conducting any type of referendum, binding or non-binding, involving the Company (in each case, other than such encouragement, advice or influence that is consistent with the Company management’s recommendation in connection with such matter);
(dc) form, join or participate in any way participate in a any “group” within the meaning of as defined pursuant to Section 13(d)(313(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any voting securities Voting Securities, other than solely with other Affiliates of the Company Blackwells with respect to Voting Securities now or the Subsidiaries;hereafter owned by them;
(ed) acquire, offer to acquire or offer, seek or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, (i) or direct any third party in the acquisition of, any Voting Securities or assets of the assetsCompany, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants rights or options to acquire any Voting Securities or assets of the Company (other than solely through the exercise of Voting Securities held by such Blackwells Party prior to the date of this Agreement and (i) identified by such Blackwells Party in its public filings with the SEC prior to the date of this Agreement or (ii) identified by such Blackwells Party in its public filings made with the SEC on the date of this Agreement, to the extent such Voting Securities were specified in drafts of such filings provided by such Blackwells Party to the Company on the date of this Agreement prior to entry into this Agreement);
(e) sell, offer or agree to sell all or substantially all voting rights decoupled from the underlying Voting Securities held by any Blackwells Party or any Subsidiary;of its Affiliates, directly or indirectly, through swap or hedging transactions or otherwise;
(f) arrangemake, or in any way participateparticipate with any other Person (other than (i) the voting of Voting Securities held by any Blackwells Party prior to the date of this Agreement and identified by such Blackwells Party in its public filings with the SEC prior to the date of this Agreement and (ii) the receipt of consideration on the same terms as other holders of Company securities), directly or indirectly, in any, or any financing for the purchase of any voting securities proposal that would reasonably be expected to result in any, tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or securities convertible or exchangeable into or exercisable for any voting securities or assets of similar transaction involving the Company or its subsidiaries or its or their securities or assets; or make, directly or indirectly, any Subsidiary;
(g) otherwise actproposal, either alone or in concert with others, to seek to propose to the Company or the Board that would reasonably be expected to require a public announcement regarding any Subsidiary such transaction;
(g) enter into a voting trust, arrangement or agreement or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of their respective stockholders or make any public statement Blackwells, with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization Voting Securities now or other transaction involving the Company or any Subsidiary;hereafter owned by them;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise (A) seek, alone or in concert with others, election or appointment to to, or representation on, the Board or to nominate or propose the nomination of of, or recommend the nomination of, any candidate toto the Board, the Board (B) seek, alone or in concert with others, the removal of any member of the Board, or propose any matter to be voted upon by the stockholders (C) conduct a referendum of the Company or any Subsidiary;shareholders;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure be the proponent of any intention, plan, shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or arrangement otherwise) for consideration by the Company’s shareholders;
(whether written or oralj) inconsistent with the foregoing, or make or disclose any request for stock list materials or proposal other books and records of the Company under Section 220 of the DGCL or other statutory or regulatory provisions providing for shareholder access to amendbooks and records;
(k) institute, waive solicit, assist or terminate join any provision litigation, arbitration or other proceeding against or involving the Company or any of 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 4; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (i) bringing litigation against the Company to enforce the provisions of this Standstill or seek permission to or make any public announcement Agreement, (ii) making counterclaims with respect to any provision proceeding initiated by, or on behalf of, the Company against a Restricted Person, or bringing a responsive independent action against the Company should counterclaims be deemed insufficient to defend such Blackwells Party’s interests, (iii) responding to oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or similar processes (each, a “Legal Requirement”) in connection with any legal proceeding (the “Legal Proceeding”) if such Legal Proceeding has not been initiated by, or on behalf of, or at the suggestion of, the Blackwells Parties; provided, further, that in the event any of the StandstillBlackwells Parties or any of the Blackwells Representatives (as such term is defined below) receives any Legal Requirement, such Blackwells Parties or Blackwells Representatives shall give prompt written notice of such Legal Requirement to the Company; orprovided, however, that this clause (k) shall not require any Blackwells Party to opt out of any class action lawsuits against the Company not initiated in violation of this clause (k) (“Class Actions”) and to which such Blackwells Party is a party solely as a result of the Blackwells Parties’ ownership of Voting Securities during the class period applicable to such Class Actions;
(jl) announce an intention to dopublicly disclose any intention, plan or to arrangement inconsistent with any provisions of this paragraph 4;
(m) enter into any arrangement negotiations, agreements or understanding understandings with others (whether written or oral) any third party to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might any Blackwells Party is prohibited from taking pursuant to this paragraph 4; or
(n) make any request or submit any proposal to amend or waive the terms of this Agreement, in each case which would reasonably be expected to result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, such request or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingproposal.
Appears in 2 contracts
Samples: Letter Agreement (Blackwells Capital LLC), Letter Agreement (Supervalu Inc)
Standstill. Executive agrees that for a period Except as otherwise provided in this Agreement, without the prior written consent of 18 months from the date of Executive’s termination of employment for any reasonTrustees (or following the Distribution Time, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board), acting the Stockholders and the Stockholder Designees shall not, and shall cause their Affiliates and controlled Associates not to, directly or indirectly (in each case, except as permitted by resolution approved this Agreement):
(i) other than pursuant to Sections 1(a) and 1(b) of this Agreement, 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 directors are to be elected; (ii) initiate, encourage or participate in any solicitation of proxies in respect of any election contest or removal contest with respect to 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) 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) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(b) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire or otherwise beneficially own (except by a majority way of all members stock dividends or other distributions or offerings made available to holders of voting securities of the BoardTrust or TPL Corp generally on a pro rata basis), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, by joining a group, through swap or entity, hedging transactions or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company Trust or TPL Corp (other than through a broad-based market basket or index) or any Subsidiaryvoting rights decoupled from the underlying voting securities which would result in (i) Horizon having ownership or control of, or other beneficial ownership interest in, 23.5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “Horizon Cap”), (ii) SoftVest having ownership or control of, or other beneficial ownership interest in, 4.0% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “SoftVest Cap”) or (iii) Mission having ownership or control of, or other beneficial ownership interest in, 5% or more, in the aggregate, of the then-outstanding Sub-share Certificates or shares of the Common Stock (the “Mission Cap”, and each of the Horizon Cap, the SoftVest Cap and the Mission Cap, individually, an “Ownership Cap”); provided, however, that, subject to Section 3(c), in the event that the Trust or TPL Corp (A) acquires through share purchases Sub-share Certificates or shares of the Common Stock or (B) undertakes a reverse share split, and any of such actions reduces the number of securities of the Trust or TPL Corp outstanding and thereby increases the proportionate number of Sub-share Certificates or shares of Common Stock that a Stockholder has ownership or control of, or otherwise beneficially owns, to a proportion of Sub-share Certificates or shares of the Common Stock that is equal to or greater than the applicable Ownership Cap for such Stockholder (such event, a “Share Reduction Event”), then such Stockholder shall not be deemed to have acquired or otherwise beneficially own an amount of Sub-share Certificates or shares of the Common Stock that is greater than the number of shares permitted pursuant to such Stockholder’s applicable Ownership Cap (such amount of securities in excess of a Stockholder’s Ownership Cap, the “Excess Shares”) in violation of this Section 3(b) as a result of such Share Reduction Event; provided, further, that such Stockholder shall divest its Excess Shares within a reasonable time period (but in any event, within 30 calendar days of becoming aware of such Share Reduction Event) so that such Stockholder no longer has ownership or control of, or otherwise holds a beneficial ownership interest in, such Excess Shares;
(c) sell or transfer shares of Common Stock, other than in open market sale transactions where the acquisition identity of the purchaser or transferee is not known and in underwritten widely dispersed public offerings, to any Third Party that (i) 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 less than one-half of one percent 5.0% or more of the shares of Common Stock outstanding voting at such time or (ii) would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of 5.0% or more of the shares of Common Stock outstanding at such time, in each case, unless such Third Party is a passive investor that has not been a “reporting person” on a Schedule 13D and would not, in connection with purchasing or holding of securities of the CompanyTPL Corp, be required to file a Schedule 13D;
(bd) make(i) form, join or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person group or entity with respect to the voting agreement of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act kind with respect to any voting securities of the Company Trust or TPL Corp (except any such group or agreement as disclosed on a Schedule 13D filing with the SubsidiariesSEC prior to the Effective Date, provided that any such group or agreement shall be terminated as of the Distribution Time), or (ii) deposit any voting securities of the Trust or TPL Corp in any voting trust or subjecting any Trust or TPL Corp voting securities to any arrangement or agreement with respect to the voting thereof;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise actseek publicly, alone or in concert with others, to seek to propose amend any provision of the Governance Documents;
(f) demand an inspection of the Trust’s or TPL Corp’s books and records;
(g) make any (i) public or private (other than to the Company Trustees or any Subsidiary or any of their respective stockholders or make any public statement the Board) proposal with respect to or (ii) public statement or otherwise seek to encourage, advise or assist any mergerperson in so encouraging or advising with respect to, business combinationin each case: (A) any change in the number or term of directors serving on the Board or the filling of any vacancies on the Board, consolidation(B) any change in the capitalization, saledividend or share repurchase policy of TPL Corp, tender offer(C) any other change in the Trust’s or TPL Corp’s business, exchange offeroperations, restructuringstrategy, reorganizationmanagement, dissolutiongovernance, liquidationcorporate structure, recapitalization or other transaction involving affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Company Trust or TPL Corp to be delisted from, or to cease to be authorized to be quoted on, any Subsidiarysecurities exchange or (F) causing a class of equity securities of TPL Corp to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(h) seekinitiate, make, effect, seek to effect, offer or propose to effect, cause or participate in, or in any way knowingly assist any (i) Extraordinary Transaction, (ii) material acquisition of any assets or businesses of the Trust, TPL Corp or any of either the Trust’s or TPL Corp’s subsidiaries, (iii) tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving any of the voting securities or any of the material assets or businesses of the Trust or TPL Corp or any of their subsidiaries, (iv) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to the Trust or TPL Corp or any of their subsidiaries or any material portion of its or their businesses, or (v) proposal, either alone or in concert with others, to control, change the Trust or influence the management, the Board TPL Corp that would reasonably be expected to require a public announcement or policies of the Company or disclosure regarding any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiarysuch matter;
(i) make enter into any publicly disclosed proposalnegotiations, public statement, public inquiry agreements or public disclosure of understandings with any intention, plan, or arrangement (whether written or oral) inconsistent Third Party with respect to the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing;
(j) publicly make or disclose in any way advance publicly any request or proposal to that the Trust or the Board amend, modify or waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillAgreement; or
(jk) announce an intention take any action challenging the validity or enforceability of this Section 3 or this Agreement, unless TPL Corp is challenging the validity or enforceability of this Agreement; provided, however, that (i) nothing in this Agreement shall prevent the Stockholders or Stockholder Designees from making (A) any factual statement in response to doa Legal Requirement, (B) any communication to the Trust or TPL Corp, or (C) any private communication to enter into any arrangement investors or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do prospective investors in any of the actions restricted Stockholders or prohibited under clauses any of their Affiliates, provided that, in each case, such statement or communication (1) is based on publicly available information; (2) is not reasonably expected to be required to be publicly disclosed by any person and is understood by all parties to be confidential communication; and (3) is not made with an intent to circumvent any of the restrictions listed in paragraphs (a) through (jk) of this StandstillSection 3 or Section 4; and (ii) the restrictions in this Section 3 shall not restrict the Stockholders or Stockholder Designees from tendering shares, receiving payment for shares or take otherwise participating in any action that might result in such transaction on the Company having to make a public announcement regarding any same basis as the other stockholders of the matters referred Trust or TPL Corp or from participating in any such transaction that has been approved by the Trustees or the Board, as applicable, subject to in clauses (a) through (j) the other terms of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, Agreement. Nothing in this Agreement shall limit the exercise in good faith by any action inconsistent with the foregoing.Stockholder Designee of his fiduciary duties under applicable law in his capacity as a director of TPL Corp.
Appears in 2 contracts
Samples: Stockholders' Agreement (SoftVest, LP), Stockholders Agreement (Texas Pacific Land Trust)
Standstill. Executive agrees (a) During the Standstill Period, except as provided in Clause 4.2, no Investor shall, and each Investor shall procure that for a period no Affiliate of 18 months from such Investor shall, directly or indirectly and either alone or together, by any manner acquire or seek to acquire (or agree to, offer to, accept an option or offer to, or enter into any discussions or agreements to, acquire), whether by purchase, contract or otherwise, any ownership interests or voting rights (or rights or options to acquire such interests or rights) in any AY Voting Securities if the date acquisition of Executive’s termination the number of employment for any reason, neither Executive nor the voting rights attached to such AY Voting Securities by such Investor and/or any of his affiliates its Affiliates, directly or persons or entities acting at his direction or with his assistance willindirectly, unless specifically invited in writing by when added to the Board, acting by resolution approved by a majority of all members number of the Boardvoting rights attached to all AY Voting Securities then held by such Investor and/or its Affiliates, in the aggregate, would result in such Investor and/or its Affiliates holding, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, aggregate more than the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities Standstill Percentage of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the total voting rights attached to all then outstanding voting securities of the Company;AY Voting Securities.
(b) makeNotwithstanding the foregoing, any Investor Party may at any time acquire (and agree to, offer to, accept an option or offer to, or enter into any discussions or agreements to, acquire), whether by purchase, contract or otherwise, from any other Investor Party any ownership interests or voting rights (or rights or options to acquire such interests or rights) in any way participate inAY Voting Securities, directly or indirectlyso long as (i) the aggregate Percentage Interest of all Investor Parties, alone or collectively, does not exceed forty-one and a half per cent (41.5%), except as provided in concert with othersClause 4.2, and (ii) promptly following such acquisition, the Investors deliver to the Company written notice of any “solicitation” (as such term is used in the proxy rules reallocation between them of the Securities aggregate Standstill Percentage of forty-one and Exchange Commission promulgated pursuant to Section 14 a half per cent (41.5%) as may be required such that no Investor Party is in violation of the Exchange ActClause 4.1(a) as a result of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;such acquisition.
(c) initiate, propose In no case shall the existence of any option or “solicit” (as such term is used in the proxy rules agreement to acquire all or any portion of the Securities and Exchange Commission) stockholders of the Company Option Shares, or any Subsidiary for the approval discussion of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision constitute a violation of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingAgreement.
Appears in 2 contracts
Samples: Shareholder Agreement (Atlantica Yield PLC), Shareholders Agreement (Algonquin Power & Utilities Corp.)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates (a) Except as otherwise expressly provided in this Agreement or persons or entities acting at his direction or with his assistance will, unless as specifically invited approved in writing by 66-2/3% of the Board, acting by resolution approved by a majority of all members of the Board, directly for a period of three (3) years from the date of this Agreement, neither London Bridge, nor any of its Affiliates or indirectlyAssociates, in nor any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireGroup which London Bridge Controls shall, directly or indirectly, alone or in concert with others, :
(i) by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, acquire, agree to acquire or offer to acquire Beneficial Ownership of, or any direct or indirect beneficial interest in Liens with respect to, any voting securities Voting Securities or direct or indirect rights, warrants rights or options to Beneficially Own Voting Securities (including any voting trust certificates representing such securities);
(ii) enter into, propose to enter into, solicit or support any Buyout Transaction or Third Party Offer, or purchase, acquire or propose to purchase, acquire, solicit or securities convertible into support the purchase or exchangeable for, acquisition of any voting securities portion of the business or assets of the Company or any Subsidiaryof its Subsidiaries by London Bridge or by any of its Affiliates or Associates or by any other Person;
(iii) form, join or in any way participate in a Group (other than a Group that may be formed in the future consisting solely of London Bridge and its Affiliates) formed for the purpose of acquiring, holding, voting or disposing of or taking any other action with respect to Voting Securities other than the acquisition Purchased Common Stock;
(iv) solicit proxies by or on behalf of any Person other than the Company with respect to any Voting Securities, become a "participant" in an "election contest" (as such terms are used in Rule 14a-11 of Regulation 14A under the aggregate of less than one-half of one percent Exchange Act) relating to the Board, or otherwise attempt to acquire or alter Control of the outstanding voting securities business or affairs of the Company;
(v) deposit any Voting Securities in a voting trust or enter into any voting agreement or arrangement with respect thereto (other than this Agreement) which would entitle any Person to Control more than 10% of the Total Voting Power of the Company;
(vi) publicly propose to do or permit any of the foregoing, publicly propose to revise any of the standstill provisions of this Agreement, or otherwise take any action challenging the validity or enforceability of the foregoing or which would be inconsistent with the foregoing; or
(vii) assist, advise, encourage, provide funds for, negotiate or otherwise participate with or support any Person with respect to, or otherwise seek to do, any of the foregoing or, except as set forth in Section 2.3 below, participate, assist, advise, encourage, provide funds for or otherwise support any Third Party Offer.
(b) make, Nothing in this Agreement shall (i) prohibit or in restrict London Bridge from responding to any way participate in, directly or indirectly, alone or in concert with others, inquiries from any “solicitation” (Other Holders as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity London Bridge's intention with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (Voting Securities Beneficially Owned by it so long as such term response is used consistent with the terms of this Agreement; (ii) prohibit London Bridge from Beneficially Owning Voting Securities issued as dividends or distributions in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Actrespect of, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchaseissued upon conversion, exchange or otherwiseexercise of, securities which London Bridge is permitted to Beneficially Own under this Agreement; (iiii) prohibit any employee or agent of the assets, tangible and intangible, London Bridge from purchasing or otherwise acquiring Voting Securities so long as he or she is not a member of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary a Group that includes London Bridge or any of their respective stockholders its Affiliates or make Associates or is not otherwise acting on behalf of London Bridge or any public statement of its Affiliates or Associates; or (iv) prohibit London Bridge from disclosing in accordance with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization its obligations (if any) under the federal securities laws or other transaction involving applicable law (if any) that the Company has become the subject of a Buyout Transaction or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingThird Party Offer.
Appears in 2 contracts
Samples: Governance Agreement (London Bridge Software Holdings PLC), Governance Agreement (Phoenix International LTD Inc)
Standstill. Executive agrees that for a period of 18 months from From and after the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by this Agreement until the Board, acting by resolution approved by a majority of all members earlier of the Board(x) Closing or (y) date this Agreement is validly terminated pursuant to Article IX, each of Danube and the Sellers shall not, and shall cause its and their respective Affiliates not to, and its and their respective Representatives acting on their behalf not to, directly or indirectly:
(a) engage in any “solicitation” of “proxies” (as such terms are defined under Regulation 14A under the Exchange Act) or consents to vote (or withhold the vote of) any Amazon Shares, or conduct any binding or nonbinding referendum with respect to any Amazon Shares, or assist or participate in any other way, directly or indirectly, in any manner solicitation of proxies (the obligations pursuant or consents) with respect to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entityany Amazon Shares, or otherwise, any direct or indirect beneficial interest otherwise become a “participant” in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any a “solicitation” (as such term is used defined under Regulation 14A under the Exchange Act) to vote (or withhold the vote of) any Amazon Shares or other capital stock of Amazon;
(b) other than any statements of opinion relating to corporate governance strategy that are not specifically targeted at Amazon or the Amazon Board of Directors, make any public statement with the effect of: (i) controlling, changing or influencing the Amazon Board of Directors, management or policies of Amazon, including any plans or proposals to change the voting standard with respect to director elections, the number of directors or the removal of any directors (other than Shareholder Nominees), or to fill any vacancies on the Amazon Board of Directors (other than Shareholder Nominees), except as contemplated in this Agreement; (ii) causing any change in the proxy rules capitalization, share repurchase programs and practices or dividend policy of Amazon; (iii) causing any other change in Amazon’s management, business or corporate structure; (iv) seeking to have Amazon waive or make amendments or modifications to the Securities and Exchange Commission promulgated Amazon Governing Documents or other actions that may impede or facilitate the acquisition of control of Amazon by any person; (v) causing a class of securities of Amazon to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (vi) causing a class of securities of Amazon to become eligible for termination of registration pursuant to Section 14 12(g)(4) of the Exchange Act;
(c) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or (i) seek to advise, encourage or influence any other Person or assist any third party in so advising, encouraging or influencing any manner whatsoever any person or entity other Person with respect to the voting giving or withholding of any voting securities proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with the Company Amazon Board of Directors’ recommendation in connection with such matter) or (ii) seek to advise, encourage or influence any SubsidiaryPerson with respect to, whether alone or in concert with others, the election, nomination or removal of a director other than as permitted by Section 7.26, and this Section 7.27;
(cd) initiateform, propose join, knowingly encourage the formation of or knowingly engage in discussions relating to the formation of, or participate in a “solicitgroup” (as such term is used in the proxy rules Section 13(d) of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary Act, for the approval purpose of stockholder proposals whether made pursuant seeking control, or influencing the control of, Amazon, except for the arrangements expressly set forth in this Agreement;
(e) offer or propose to Rule 14a-8 acquire or Rule 14a-4 under agree to acquire (or request permission to do so), whether, directly or indirectly, by market purchases, private purchases, tender or exchange offer, through the acquisition of control of another person, by joining or participating in a “group” as used in Section 13(d) of the Exchange Act, or otherwise, any Amazon Shares or cause other capital stock of Amazon (or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(dbeneficial ownership thereof) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting Amazon Shares or other capital stock of Amazon (or beneficial ownership thereof) (including any derivative securities or assets other rights decoupled from the underlying securities of the Company or any SubsidiaryAmazon), except as permitted by and in accordance with Section 7.26;
(gf) otherwise actseparately or in conjunction with any third party 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 or privately, with or without conditions), indicate an interest in or effect or commence any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving Amazon or any Amazon Subsidiary or the assets or businesses of Amazon or any Amazon Subsidiary or actively encourage or initiate or support any other third party in any such activity; provided, however, that each of Danube and the Sellers shall be permitted to vote on any such transaction in accordance with the terms and conditions of this Agreement; provided, further, for the avoidance of doubt, tendering into any tender offer or exchange offer not commenced by either Danube or the Sellers, or its or their Affiliates, will not violate this Section 7.27(f);
(i) except as expressly provided herein (and in accordance with the terms and conditions hereof), nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any annual or special meeting of the Amazon Shareholders at which Amazon’s directors are to be elected or (ii) (A) present at any annual or special meeting of the Amazon Shareholders any proposal (pursuant to Rule 14a-8 or otherwise) for consideration for action by the Amazon Shareholders or (B) call or seek to call, or request the call of, alone or in concert with others, to seek to propose to or support another Amazon Shareholder’s call for, any meeting of the Company Amazon Shareholders, whether or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving not such a meeting is permitted by the Company or any SubsidiaryAmazon Governing Documents;
(h) seekencourage, alone facilitate, support, participate in or in concert enter into any negotiations, agreements, arrangements or understandings with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate respect to, the Board taking of any action by any other Person in connection with the foregoing that is prohibited to be taken by Danube or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any SubsidiarySellers;
(i) make (i) publicly seek or publicly request permission to do any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, (ii) publicly request to amend or make or disclose any request or proposal to amend, waive or terminate any provision of Section 7.26 or this Standstill Section 7.27 (including this clause (i)), or (iii) publicly make or publicly seek permission to or make any public announcement with respect to any provision of the Standstillforegoing;
(j) contest the validity or enforceability of the agreements contained in Section 7.26 or this Section 7.27 or publicly seek a release of the restrictions contained in Section 7.26 or this Section 7.27 (whether by legal action or otherwise);
(k) enter into any agreement, arrangement or understanding with respect to any of the foregoing; or
(jl) announce an intention to do, knowingly encourage or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage knowingly facilitate others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 2 contracts
Samples: Business Combination Agreement (Bungeltd), Business Combination Agreement (Bungeltd)
Standstill. Executive agrees that for (a) For a period of 18 twelve months from following the date of Executive’s termination of employment for any reasonthis Agreement, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe Vendor shall not, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardPurchaser, directly or indirectly, which consent may be given on such terms and conditions as the Purchaser may determine: (i) in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, agree to acquire or make any proposal or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone any unissued or in concert with othersoutstanding securities of the Corporation or propose or offer to enter into, by directly or indirectly, any amalgamation, plan of arrangement, merger or business combination involving the Corporation and its Affiliates or to purchase, tender offerdirectly or indirectly, exchange offerall or substantially all of the assets of the Corporation and its subsidiaries, through taken as a whole; (ii) directly or indirectly “solicit” or participate or join with any person in the acquisition or control “solicitation” of another person or entityany “proxies” (as such terms are defined in the Securities Act (Ontario)) to vote, or otherwise, seek to influence any direct or indirect beneficial interest in any person with respect to the voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forof, any voting securities of the Company Corporation; (iii) otherwise act alone or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone jointly or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose control or to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board board of directors or policies of the Company Corporation; (iv) solicit, facilitate or encourage any transaction to acquire assets of the Corporation and/or one or more of its subsidiaries representing 20% or more of the consolidated assets or contributing 20% or more of the consolidated revenue of the Corporation and its subsidiaries, taken as a whole, or acquire 20% or more of the Common Shares (an “Acquisition Transaction”) other than a transaction by the Purchaser or any Subsidiary, of its Affiliates or otherwise seek, alone any person acting jointly or in concert with othersthe Purchaser; (v) enter into, election continue or appointment to participate in any discussions or representation onnegotiations regarding an Acquisition Transaction, or furnish to nominate or propose the nomination of any candidate to, the Board or the removal of other person any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement information with respect to any provision the business of the Standstill; or
Corporation or its properties, operations, prospects or conditions (jfinancial or otherwise) announce in connection with an intention to doAcquisition Transaction or otherwise cooperate in any way with, or to enter into assist or participate in, facilitate or encourage, any arrangement effort or understanding attempt of any other person (other than the Purchaser or any of its Affiliates or any person acting jointly or in concert with others (whether written or oralthe Purchaser) to do, do or to finance, intentionally advise, enable, assist or encourage others seek to do any of the actions restricted foregoing; or prohibited under clauses (avi) through (j) of this Standstilladvise, assist, encourage or take act jointly or in concert with any action that might result other person in the Company having to make a public announcement regarding connection with any of the matters referred to foregoing, other than the Purchaser or any of its Affiliates or any person acting jointly or in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent concert with the foregoingPurchaser.
(b) For greater certainty, and notwithstanding anything else in Section 6(a), Section 6(a) shall not apply to any investment fund or product managed by GCIC US Ltd., the manager of the Vendor, (the “Manager”) or any of its affiliates, other than the Vendor and XXX (whose relationship with the Purchaser is governed by a Securities Purchase Agreement of even date herewith (the “XXX Agreement”) and the terms of which agreement shall prevail in the event of any inconsistency or conflict between this Agreement and the XXX Agreement), unless such fund or product is managed by XXX, the lead portfolio manager of the Vendor.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.), Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.)
Standstill. Executive Each member of the Shareholder Group agrees that for a period during the Standstill Period he or it will not, and he or it will cause each of 18 months from the date of Executivesuch person’s termination of employment for respective Affiliates, Associates and agents and any reason, neither Executive nor any of other persons acting on his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):its behalf not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with others, acquire by purchase, tender offer, exchange offer, through the acquisition agreement or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company business combination or any Subsidiary, other than the acquisition in the aggregate manner beneficial ownership of less than one-half of one percent of the outstanding voting any securities of the Company, if after completion of such acquisition or proposed acquisition, the members of the Shareholder Group, in the aggregate, would beneficially own more than ten percent (10%) of the outstanding shares of Common Stock (based on the latest annual, quarterly or other report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), excluding the acquisition of equity-based compensation pursuant to Section 11 hereof and the exercise of any options or conversion of any convertible securities comprising such equity-based compensation;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than (i) with other members of the Shareholder Group or one or more of their Affiliates (provided that any such Affiliate signs a joinder to this Agreement), (ii) to the extent such a group may be deemed to result with the Company any of its Affiliates as a result of this Agreement or (iii) a voting agreement entered into pursuant to a Sale Transaction (as defined below) which has been approved by a majority of the SubsidiariesBoard;
(d) engage in discussions with other shareholders of the Company, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act, in each case, to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, 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 any shareholder meeting;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (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;
(f) effect or seek to effect (including, without limitation, by purchaseentering into any discussions, exchange 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, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group (fother than the Shareholder Group and their Affiliates) arrangewould beneficially own, or have the right to acquire beneficial ownership of, more than 5% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any way participatetransferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 6, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been publicly announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or Xxxxxxx, in his capacity as a shareholder of the Company, to vote in favor of a Sale Transaction that was approved by the Board;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of any intent, consolidationpurpose, saleplan or proposal to obtain any waiver, tender offeror consent under, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 5 hereof or this Section 6, or otherwise seek (in any manner that would require public disclosure by any of the Company, or members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of disparage the Company or any Subsidiarymember of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise seek, alone or in concert with others, election or appointment to or representation onotherwise, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter communications that are required by an applicable legal obligation and are subject to be voted upon by the stockholders of the Company or any Subsidiarycontractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right, or arrangement other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(j) demand or make a request for inspection of the Company’s records under the Georgia Business Corporation Code;
(k) enter into any arrangements, understandings or agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jl) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing; provided, that notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit Xxxxxxx from engaging in any lawful act in his capacity as a director of the Company that is either approved by the Board or required for Xxxxxxx to comply with his fiduciary duties.
Appears in 2 contracts
Samples: Shareholder Agreement (Northern Right Capital Management, L.P.), Shareholder Agreement (PRGX Global, Inc.)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonStandstill Term the Investor and its Affiliates (collectively, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe “Standstill Parties”) shall not (and the Investor shall cause its Affiliates not to), unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardBoard of Directors (or any committee thereof) of the Company, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone more than one percent (1%) of any class or in concert with others, by purchase, tender offer, exchange offer, through the acquisition series of any equity or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting debt securities of the Company or any Subsidiaryof its subsidiaries (whether by purchase, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companybusiness combination, merger, consolidation, share exchange, joint venture or otherwise);
(b) make, solicit proxies or consents or become a “participant” in any way participate in, directly or indirectly, alone or in concert with others, any a “solicitation” (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act) of proxies or consents with respect to vote, whether subject securities of the Company or initiate any stockholder proposal with respect to or exempt from the proxy rules, or Company;
(c) seek to advise, encourage control or influence the management, Board of Directors or policies of the Company or any of its subsidiaries, or take action for the purpose of convening a stockholders meeting of the Company, other than in any manner whatsoever any person or entity the ordinary course of business with respect to (i) the voting Collaboration Agreement or (ii) any other commercial agreement between the Investor or an Affiliate of the Investor and the Company or any voting of its Affiliates;
(d) make any proposal or any public announcement (including, for the avoidance of doubt, indirectly by means of communication with the press or media) relating to a tender or exchange offer for securities of the Company or any Subsidiaryof its subsidiaries or relating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation, restructuring, recapitalization, or similar transaction involving the Company or its subsidiaries, or take any action that might require the Company to make a public announcement regarding any of the foregoing;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(de) form, join or in any way participate in a “group” within the meaning of as defined in Section 13(d)(3) of the Exchange Act (other than with respect to any the Investor’s Affiliates) for the purpose of acquiring, holding, voting or Disposing of securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assetsits subsidiaries or taking any other actions restricted or prohibited under clauses (a) through (d) of this Section 2.1, tangible and intangible, of the Company or take any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;steps in connection therewith; or
(f) arrangeenter into any discussions, negotiations, arrangements or in understandings with any way participate, directly or indirectly, in any financing for Third Party (other than with the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(gInvestor’s Affiliates) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (je) of this StandstillSection 2.1. Nothing in this Agreement shall restrict the Investor or any of its representatives from (1)(a) from the date of this Agreement until June 30, 2016, making a request directly to the Board of Directors of the Company for written consent to submit a proposal regarding a possible business combination involving the Company and the Investor or any of their respective Affiliates (a “Transaction”) directly to the Board of Directors of the Company on a confidential basis, which request shall be considered in good faith (provided that if the Company believes that the Investor has made a confidential proposal not meeting the requirements of clause (a), the Company will provide the Investor notice of such violation and the Investor shall have the opportunity to withdraw or otherwise negate such proposal to ensure compliance with the provisions of this Section 2.1), or take any action that might result in (b) following June 30, 2016, making a proposal regarding a possible Transaction directly to the CEO or Board of Directors of the Company having on a confidential basis, (2) acquiring or offering to make a public announcement regarding acquire, seeking, proposing or agreeing to acquire any Third Party that owns any securities or assets of the matters referred to Company or (3) acquiring any securities of the Company in clauses (a) through (j) connection with any mutual fund, pension plan or employee benefit plan managed on behalf of this Standstill, employees or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with former employees of the foregoingCompany.
Appears in 2 contracts
Samples: Investor Agreement (TESARO, Inc.), Stock Purchase Agreement (TESARO, Inc.)
Standstill. Executive agrees Each of CD&R Fund and the Purchaser Parties agree that for a period during the Standstill Period, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Company Board, acting by resolution approved by a majority of all members of CD&R Fund and the BoardPurchaser Parties shall not, directly or knowingly indirectly, and shall use reasonable best efforts to cause their respective Affiliates not to (either individually, or in concert with any manner other Person, or as a “group” (as such term is used in Section 13(d)(3) of the obligations pursuant to this Section 13 being referred to as, the “Standstill”Exchange Act)):
(a1) acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a proposal to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rightsrights to acquire any equity securities of the Company or any of its Affiliates, warrants or options to acquire, or any securities convertible into or exchangeable forfor any such equity securities, any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock or substantially all of the assets or property of the Company and its Subsidiaries (but in any case excluding (1) any issuance by the Company of shares of Common Stock or options, warrants or other rights to acquire Common Stock (or the exercise thereof) (A) to any Purchaser Designee as compensation for their membership on the Company Board or (B) as a result of a dividend payment on, or the conversion of, the Preferred Stock pursuant to the provisions of the Certificate of Designations and (2) the use of cash dividends received by the Purchaser Parties on the Preferred Stock to acquire shares of Common Stock in open market purchases (but only to the extent of such cash dividends paid by the Company on the Preferred Stock), to the extent permitted by applicable Law);
(2) other than to effectuate the nomination and election of the Purchaser Designees pursuant to Section 4.10, make or in any way participate or engage 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 voting securities of the Company or any Subsidiaryof its Subsidiaries, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities 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 the Purchaser Designees, seek election to or to place a representative on the Company Board or seek the removal of any director from the Company Board;
(b3) makemake any public announcement with respect to, or offer, seek, propose or indicate an interest in (in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the assets of the Company and its Subsidiaries, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities or assets, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(4) effect or seek to effect (including by entering into 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 public or otherwise) to effect or participate in(except as a holder of Common Stock or Preferred Stock) in a merger, directly consolidation, division, acquisition or indirectlyexchange of substantially all assets or equity, alone change of control transaction, recapitalization, restructuring, liquidation or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of similar transaction involving the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e5) acquireexcluding Purchaser Designees, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose control or influence, in any manner, management or the Company Board or any of its Subsidiaries;
(6) make any public proposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, encourage or direct any other person to do, any of the foregoing;
(8) take any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 4.13(b);
(9) enter into any discussions, negotiations, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as such term is used in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in connection with any of the foregoing;
(10) request the Company or any Subsidiary of its representatives, directly or indirectly, to amend or waive any provision of their respective stockholders or make any public statement with respect this Section 4.13(b), provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company seeking an amendment or waiver of the provisions of this Section 4.13(b), which the Company may accept or reject in its sole discretion, so long as any Subsidiary;such request is made in a manner that does not require public disclosure thereof by any Person; or
(h11) seekcontest the validity of this Section 4.13(b) or make, alone initiate, take or participate in concert with othersany demand, to control, change action (legal or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(iotherwise) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Section 4.13(b); provided, however, that nothing in this Section 4.13(b) will limit (1) the Purchaser Parties’ ability to vote (subject to Section 4.12 4.13(a) and the other Transaction Documents) or seek permission Transfer (subject to Section 4.9 and the other Transaction Documents) their shares of Preferred Stock or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this StandstillCommon Stock, or otherwise intentionally takeexercise rights under their shares of Preferred Stock pursuant to the Certificate of Designations, (2) the preemptive rights of any Purchaser Party pursuant to Section 4.11, or solicit(3) the ability of any Purchaser Designee to act in his or her capacity as a member of the Company Board, including, but not limited to, his or cause her ability to vote or encourage others to take, any action inconsistent with the foregoingotherwise exercise his or her fiduciary duties.
Appears in 2 contracts
Samples: Investment Agreement, Investment Agreement (Beacon Roofing Supply Inc)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, Standstill Period and unless specifically invited in writing otherwise approved by the BoardBoard of Directors (excluding any Investor Designees), acting by resolution approved by a majority the Investor will not, and will cause each of all members of the Boardits Affiliates, directors, officers or employees not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):acting alone or as part of a 13D Group:
(a) acquireacquire or agree, offer offer, seek or propose to acquirepropose, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or control of another person or entity, by joining any 13D Group or otherwise, any direct to acquire ownership of any, (x) of the businesses or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities material assets of the Company or any Significant Subsidiary (except for any transaction in the ordinary course of business), (y) any Equity Securities or any equity securities of any Significant Subsidiary, or (z) rights or options to acquire such ownership other than (i) the delivery of the Shares pursuant to the Stock Purchase Agreement, (ii) the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company’s securities as a result of any stock splits, stock dividends or other distributions or recapitalizations or offerings made available by the Company to holders of Common Stock, including rights offerings, (iii) any acquisition of the Company’s securities approved by the Board of Directors (excluding any Investor Designees), or (iv) any acquisition of the Company’s securities pursuant to a Permitted Transfer (each event listed in clauses (i) through (iv), a “Permitted Acquisition”);
(b) make, or engage in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in within the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 meaning of the Exchange Act) of proxies or consents relating to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity election of directors with respect to the voting Company, or become a “participant” in any “election contest” (both within the meaning of the Exchange Act) seeking to elect directors not nominated by the Board of Directors, other than the Investor Designees, or call, or seek or propose to call, any voting meeting of the Company’s shareholders in connection therewith;
(c) in any manner, agree, attempt, seek or propose to deposit any securities of the Company or any Subsidiary;
rights to acquire (c) initiatewhether currently, propose upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or “solicit” (as such term is used in the proxy rules any combination of the foregoing) any Equity Securities and Exchange Commission) stockholders of the Company in any voting trust or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholderssimilar arrangement;
(d) form, form or join or any way participate in the formation of a “group” within the meaning of Section 13(d)(3) 13D Group (other than a 13D Group consisting only of the Exchange Act Investor and its Affiliates) with respect to any voting Equity Securities or equity securities of any Significant Subsidiary, or grant to any Person any proxy with respect to the Company or exercise of voting rights with respect to the Subsidiaries;Shares; or
(e) acquirepublicly announce any intention, offer to acquire plan or agree to acquire, directly arrangement or indirectly, alone finance (or arrange financing for) any Person in concert connection with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 2 contracts
Samples: Investor Rights Agreement (Western Digital Corp), Investor Rights Agreement (Hitachi LTD)
Standstill. Executive Each Seller agrees that for a period of 18 months from that, prior to 11:59 p.m., Pacific time, on the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members one year anniversary of the BoardClosing Date, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):it will not:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control acquire beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyShares;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Company Shares or deposit any Company Shares in a voting trust or similar arrangement or subject any Company Shares to any voting securities agreement or pooling arrangement, other than with other Sellers or one or more of their Affiliates;
(d) engage in discussions with other stockholders of the Company, solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Company Shares, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the Subsidiariesmeaning 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 or tendering, any Company Shares with respect to any matter, including any Sale Transaction that is not approved by a majority of the Board, 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 any stockholder meeting;
(e) acquirecall, offer seek to acquire call, or agree request the calling of, a special meeting of the stockholders of the Company, or seek to acquiremake, directly or indirectlymake, alone a shareholder 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;
(f) effect or seek to effect (including by purchaseentering into any discussions, exchange 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, solicit, encourage or facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries; (ii) direct any transfer or indirect rights, warrants acquisition of Company Shares or options to acquire any assets other securities of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase securities of any voting securities Affiliate of the Company; (iii) any tender offer or securities convertible exchange offer, merger, change of control, acquisition or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries; or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”);
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of this Section 4.1;
(h) seekengage in any short sale or any purchase, alone 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 concert with others, to control, change the market price or influence the management, the Board or policies value of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryCompany’s securities;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, take or to enter into any arrangement cause or understanding with others (whether written induce or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do take any action inconsistent with any of the foregoing; provided, that, notwithstanding the foregoing, with respect to NRC Management the foregoing covenants and agreements set forth in this Section 4.1 shall only be applicable to NRC Management’s actions on behalf of the Managed Account and nothing herein shall restrict or restrain (i) NRC QP or any other fund, investment vehicle or managed account over which NRC Management or any of its Affiliates may serve as investment manager or any other investment advisory client of NRC Management (an “Other Account”) from taking any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result engaging in the Company having to make a public announcement regarding any of the matters referred set forth in this Section 4.1, (ii) NRC Management or any of its Affiliates from taking any of the actions or engaging in any of the matters set forth in this Section 4.1 on behalf of any Other Account or (iii) restrict or restrain any investor or owner of BD SLV or the Managed Account (other than NRC Management, to the extent set forth above) from taking any of the actions or engaging in clauses (a) through (j) any of the matters set forth in this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 4.1.
Appears in 2 contracts
Samples: Share Repurchase Agreement (Northern Right Capital Management, L.P.), Share Repurchase Agreement (Intevac Inc)
Standstill. Executive agrees that for a period Without the prior written consent of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority each Member will not, and will cause each of all members of the Boardits respective affiliates, associates and Representatives not to, do, directly or indirectly, any of the following for a period commencing on the date hereof and ending on the date that is ten days prior to the deadline for stockholders to submit nominations for the 2014 Meeting (or, if a Raging Capital Designee is nominated for election at the 2014 Meeting by the Company in any manner accordance with Section 1(d), the date that is ten days prior to the deadline for stockholders to submit nominations for the 2017 Meeting) (the obligations pursuant to this Section 13 being referred to assuch period, the “StandstillStandstill Period”):
(a) (i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire (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), directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person or entity, by joining a partnership, limited partnership, syndicate or other “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than voting rights decoupled from the acquisition underlying voting securities which would result in the aggregate of less Raging Capital Group (together with any other person or entity, partnership, limited partnership, syndicate or other “group” referred to in this Section 4(a)) owning, controlling or otherwise having any ownership interest in more than one-half of one percent 14.9% of the then-outstanding shares of common stock of the Company, 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 such Member to any Third Party (as defined below) which would result in such Third Party, together with its affiliates and associates having any ownership interest in more than 14.9% of the then-outstanding shares of common stock of the Company, except in a transaction approved by the Board;
(bi) makeengage, or in any way participate inparticipate, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used defined in Rule 14a-1(l) promulgated by the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of SEC under the Exchange Act) of proxies or consents in any “election contest” with respect to votethe Company’s directors (regardless of whether it involves the election or removal of directors of the Company), whether subject to or exempt from the proxy rules, or (ii) seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company in any “election contest” with respect to the Company’s directors (regardless of whether it involves the election or any Subsidiary;
removal of directors of the Company), (ciii) initiate, propose or otherwise “solicit” (as such term is used defined in Rule 14a-1(l) promulgated by the proxy rules of SEC under the Securities and Exchange CommissionAct) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 in connection with the election or Rule 14a-4 under removal of directors of the Exchange ActCompany, or otherwise, or cause or encourage (iv) induce or attempt to cause induce any other person or encourage others entity to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(dc) form, join or in any way participate in a partnership, syndicate, or other group, including without limitation any “group” within the meaning of as defined under Section 13(d)(3) of the Exchange Act Act, with respect to any voting securities of the Company in connection with any “election contest” with respect to the Company’s directors (regardless of whether it involves the election or removal of directors of the SubsidiariesCompany), other than a “group” that (1) includes all or some lesser number of the persons or entities identified as “Reporting Persons” (or affiliates thereof) in the Raging Capital Schedule 13D (as defined below) and the signatories to this Agreement, and (2) does not include any other members who are not currently identified as Reporting Persons (or affiliates thereof) or parties to this Agreement;
(d) deposit any Company voting securities in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, (1) to controlcall a meeting of stockholders or solicit consents from stockholders or conduct a referendum of stockholders, change or influence the management, (2) to obtain representation on the Board or policies of the Company or any Subsidiaryexcept as otherwise expressly permitted in this Agreement, or otherwise seek, alone or in concert with others, election or appointment (3) to or representation on, or to nominate or propose the nomination of any candidate to, the Board or effect the removal of any member of the Board, provided that this shall not pertain to any Raging Capital Designee, (4) to make a stockholder proposal at any meeting of the stockholders of the Company, or (5) to amend any provision of the Company’s certificate of incorporation or bylaws;
(f) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any matter way assist or facilitate any other person to be voted upon by the stockholders effect or seek, offer or propose to effect or participate in, (i) any acquisition of more than 14.9% of any securities, or any material assets or businesses, of the Company or any Subsidiary;of its subsidiaries, (ii) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving more than 14.9% of any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or any material portion of its or their businesses; provided that this Section 3(f) shall not prohibit any Member from offering to purchase assets of the Company if the sale of such assets is initiated by the Company through an open bidding process or as part of a transaction between the Company, on the one hand, and any member of the Board or any of the Company’s executive officers, on the other hand, or from offering to purchase the securities of the Company if a member of the Company’s management has publicly offered to acquire all or substantially all of the equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act; provided, further, that this Section 3(f) shall not prohibit any Member from participating in any transaction approved by the Board; or
(ig) make enter into any publicly disclosed proposaldiscussions, public statementnegotiations, public inquiry agreements or public disclosure of understandings with any intention, plan, or arrangement (whether written or oral) inconsistent Third Party with respect to the foregoing, or make or disclose any request or proposal to amendadvise, waive or terminate any provision of this Standstill assist, encourage or seek permission to or make persuade any public announcement Third Party to take any action with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstillforegoing, or otherwise intentionally take, or solicit, take or cause or encourage others to take, any action inconsistent with any of the foregoing.
Appears in 2 contracts
Samples: Settlement Agreement (Raging Capital Management, LLC), Settlement Agreement (Resource America, Inc.)
Standstill. Executive agrees that for a period of 18 months from Except with the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members prior written consent of the BoardCompany, at all times during the Standstill Period (as defined below in Section 21), each Investor agrees, severally, but not jointly, not to, directly or indirectly, and will cause each of its respective Affiliates (as defined in any manner (the obligations pursuant to this Section 13 being referred to as21) not to, the “Standstill”):directly or indirectly:
(a) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, solicit an offer or announce any intention to sell effect or agree to acquire, directly cause or indirectly, alone participate in or in concert with othersany way assist, by purchasefacilitate or encourage any other individual, tender offergeneral or limited partnership, exchange offercorporation, through the acquisition limited liability or control unlimited liability company, joint venture, estate, trust, group, association or other entity of another person any kind or entitystructure (collectively, a "Person") to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, any direct or indirect beneficial interest "solicitation" of "proxies" (as such terms are used in the proxy rules of SEC) to vote any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities Voting Securities of the Company or consent to any Subsidiary, other than the acquisition in the aggregate action from any holder of less than one-half of one percent any Voting Securities of the outstanding Company or conduct or suggest any binding or nonbinding referendum or resolution or seek to advise, encourage or influence any Person with respect to the voting securities of or the granting of any consent with respect to any Voting Securities of the Company;
(b) makepropose or nominate, or in cause or encourage any way participate in, directly Person to propose or indirectly, alone or in concert with othersnominate, any “solicitation” (as such term is used in candidates to stand for election to the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesBoard, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting removal of any voting securities member of the Company or any SubsidiaryBoard;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way otherwise participate in a “any "partnership, limited partnership, syndicate or other group” " (other than any group among some or all of the Affiliates of the Investors) within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock, or deposit any shares of Common Stock in a voting trust or similar arrangement, or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, or grant any proxy with respect to any shares of Common Stock (other than to a designated representative of the Company pursuant to a proxy statement of the Company) or otherwise act in concert with any Person with respect to the SubsidiariesCommon Stock (other than Affiliates of the Investors);
(d) seek to call, or to request the call of, or call a special meeting of the stockholders of the Company, or make a request for a list of the Company's stockholders or other Company records;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to control or seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change to seek representation on, or to influence or seek to influence, whether through litigation or otherwise, the management, the Board or the policies of the Company; provided, however, that nothing herein shall prohibit the Investors from complying with legal or regulatory requirements, including, without limitation, the filing of any report or schedule required to be filed with the SEC, and provided, further that each of the Investors and their Affiliates, may privately communicate their views to the management or the Board;
(f) 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 Subsidiaryof its subsidiaries; (iii) merger, acquisition, share exchange or otherwise seekother business combination involving the Company or any of its subsidiaries; or (iv) recapitalization, alone restructuring, liquidation, dissolution or in concert other extraordinary transaction with others, election respect to the Company or appointment to any of its subsidiaries or representation on, material portion of its or to nominate or propose their businesses;
(g) other than through open market broker sale transactions where the nomination of any candidate to, the Board or the removal of any member identity of the Boardpurchaser is unknown, sell, offer or propose agree to sell directly or indirectly, through any matter to be voted upon by the stockholders swap or hedging transaction or otherwise, any security of the Company or any Subsidiaryright decoupled from such underlying security held by either Investor to any Person that would knowingly result in such Person, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of 10% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Person who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 10% or more of the shares of the Common Stock outstanding at such time, except in each case in a transaction approved by the Board;
(h) request that the Company or any of its Representatives amend or waive any provision of this Section 3; or
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with any of the foregoing. Notwithstanding anything to the contrary, nothing in this Agreement shall prohibit or restrict any director of the Company, including any New Nominee, from exercising his or her rights and fiduciary duties as a director of the Company.
Appears in 2 contracts
Samples: Director Nomination Agreement (Springowl Associates LLC), Director Nomination Agreement (Forestar Group Inc.)
Standstill. Executive The Shareholder hereby agrees that that, for a period of 18 months one year from the date of Executive’s termination of employment for any reasonhereof, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardCompany, the Shareholder will not, and the Shareholder will use its reasonable best efforts to cause each of its Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquire, publicly announce an intention to acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire (except, in any case, by way of stock dividends or other distributions or offerings made available to holders of any Common Stock generally), directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person Person, by joining a partnership, limited partnership, syndicate or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
"group" (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to Act) or otherwise, any voting equity securities of the Company Company; provided, however, that the Shareholder and/or any of its Affiliates may acquire additional shares of Common Stock in open market or privately-negotiated transactions as long as the SubsidiariesShareholder and its Affiliates, collectively, shall not, as a result of such purchase or purchases, beneficially own in excess of 25% of the outstanding shares of Common Stock;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangemake, or in any way participate, directly or indirectly, in any financing "solicitation" (as such term is used in the proxy rules of the Commission as in effect on the date hereof) of proxies or consents (whether or not relating to the election or removal of directors), seek to advise, encourage or influence any Person with respect to the voting of any Voting Securities, initiate, propose or otherwise "solicit" (as such term is used in the proxy rules of the Commission as in effect on the date hereof) stockholders of the Company for the approval of stockholder proposals made pursuant to Rule 14a-8 of the Exchange Act, or induce or attempt to induce any other Person to initiate any such stockholder proposal;
(iii) seek, propose, or make any public statement (whether written or oral) with respect to, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of any voting assets, sale or purchase of securities (except as and to the extent specifically permitted hereby), dissolution, liquidation, restructuring, recapitalization or securities convertible similar transactions of or exchangeable into or exercisable for any voting securities or assets of involving the Company or any Subsidiaryof its Affiliates or solicit or encourage any other Person to make any such public statement or proposal;
(giv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than 63 groups consisting solely of directors of the Company, other parties hereto and their respective Affiliates;
(v) deposit any Voting Securities in any voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities;
(vi) execute any written consent with respect to the Company or its Voting Securities;
(vii) otherwise act, alone or in concert with others, to control or seek to propose control or influence or seek to influence the Company management, Board of Directors or any Subsidiary or any policies of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any SubsidiaryCompany;
(hviii) seek, alone or in concert with others, to control, change or influence the management, representation on the Board or policies of Directors of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or seek the removal of any member of the Board, or propose any matter to be voted upon by the stockholders Board of the Company or any SubsidiaryDirectors;
(iix) make any publicly disclosed proposal or enter into any discussion regarding any of the foregoing;
(x) publicly make any proposal, public statementstatement or inquiry, public inquiry or public disclosure of publicly disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or publicly make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Agreement or seek permission to the Certificate of Incorporation or make any public announcement with respect to any provision By-laws of the StandstillCompany; or
(jxi) announce an intention to do, or to enter into any arrangement arrangements, understandings or understanding with others agreements (whether written or oral) to dowith, or to finance, intentionally advise, enablefinance or assist, assist or encourage others to do any other Person in connection with any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillforegoing, or take make any action investment in or enter into any arrangement with, any other Person that might result engages, or offers or proposes to engage, in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Shaw Industries Inc), Merger Agreement (Maxim Group Inc /)
Standstill. Executive Armistice agrees that for a period of 18 months from until the date of Executive’s termination of employment for any reasonTermination Date, neither Executive nor any of his affiliates or persons or entities it shall not, and shall cause its Affiliates and Associates and its and their respective principals, directors, general partners, members, officers, employees, and agents and representatives acting at his direction or with his assistance willon their behalf (collectively, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Armistice Affiliates”) not to, directly or indirectly, in any manner (without the obligations pursuant to this Section 13 being referred to as, prior express written invitation or authorization by the “Standstill”):Board:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, engage in or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant (the “SEC”), but without regard to Section 14 the exclusion set forth in Rule 14a-1(1)(2)(iv) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies proxies, consents or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity voting authorizations with respect to the voting election or removal of any voting securities directors of the Company or any Subsidiary;
(c) initiateother matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, propose or become a “solicitparticipant” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or assist any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate “participant” in any such stockholder proposal; solicitation of proxies, consents or otherwise communicate with voting authorizations from the Company’s stockholders;
(b) encourage, influence, induce or its Subsidiaries’ stockholders advise or others 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 the Company’s common stock, par value $0.001 per share (the “Common Stock”) (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board in connection with the solicitation of proxies or consents or matters presented any matter submitted to the Company’s stockholders for their consideration and vote);
(c) form, join, encourage, influence, advise, act in concert with or its Subsidiaries’ stockholdersin 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 Armistice Affiliates with respect to Voting Securities now or hereafter owned by them;
(d) form, join make or be the proponent of any way participate in a “group” within the meaning of Section 13(d)(3) of stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act with respect to any voting securities of the Company or the Subsidiariesotherwise);
(e) acquiremake any request for a stockholder list or for any other Company materials, offer to acquire books or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any records under Section 220 of the assetsDelaware General Corporation Law, tangible as amended, or other statutory or regulatory provisions providing for stockholder access to stockholder lists or Company books and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiaryrecords;
(f) arrangemake any statement or announcement that constitutes an ad hominem attack on, or in otherwise disparages or causes to be disparaged, the Company, any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise actCompany’s Affiliates, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders the Company’s past, present or make any public statement with respect to any mergerfuture employees, business combinationdirectors, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization managers or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillrepresentatives, or take any action that might would reasonably be expected to result in any such statement or announcement being publicly made;
(g) enter into any discussions, negotiations, agreements or understandings with any Third Party to take any action that Armistice is prohibited from taking pursuant to this Section 3;
(h) make any request or submit any proposal to amend or waive the Company having terms of this Agreement, in each case which would reasonably be expected to make result in a public announcement regarding of such request or proposal; or
(i) disclose any intention, plan, commitment or arrangement to do any of the matters referred to foregoing. Notwithstanding anything in clauses this Section 3 or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict Armistice from (ai) through communicating privately with the Board or any of the Company’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, (jii) communicating with stockholders of the Company and others in a manner that does not otherwise violate this StandstillSection 3 or Section 4(b), or otherwise intentionally take, or solicit, or cause or encourage others to take, (iii) taking any action 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 Armistice. Nothing in this Section 3 or elsewhere in this Agreement shall be deemed to, in any manner, restrict any director’s ability to act consistently with his or her fiduciary duties as a director of the foregoingCompany.
Appears in 2 contracts
Samples: Cooperation Agreement (Avalo Therapeutics, Inc.), Cooperation Agreement
Standstill. During the period commencing with the Effective Date and ending August 1, 2023 (the “Standstill Period”), the Executive agrees that for a period will not, and will cause each of 18 months from his Affiliates (or any other person or entity (including any Associate) acting on behalf of or at the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or otherwise with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardExecutive’s encouragement or support) not to, directly or indirectly, in any manner (including by assisting, encouraging or participating with others to), alone or in concert with others (in each case, except as approved by a resolution of the obligations pursuant Board or any committee thereof empowered to this Section 13 being referred to as, the “Standstill”take such action):
(a) acquire, offer offer, 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, tender offer, exchange offer, through the acquisition or control of another person or entity, ownership (beneficial or otherwise, any direct or indirect beneficial interest and in any voting securities manner) of any debt or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting equity securities of the Company (including Common Stock) or any Subsidiaryrights or options to acquire such ownership or securities convertible or exchangeable into such ownership (including Redeemable Warrants), other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting each case excluding securities of the CompanyCompany issued as a dividend or otherwise in respect of securities of the Company otherwise owned by any such person or with respect to any;
(b) makeacquire, offer, seek or propose to acquire, or agree to acquire, ownership (beneficial or otherwise, and in any way manner) of any instruments, real or synthetic, that give Executive or his Affiliates or Associates (or any other person or entity acting on behalf of or at the Executive’s direction) the right to vote or direct the voting of any securities of the Company, in each case excluding securities of the Company issued as a dividend or otherwise in respect of securities of the Company otherwise owned by any such person and excluding any Earnout Shares and/or Adjustment Escrow Stock;
(c) propose or effect any tender or exchange offer, merger, consolidation, business combination, recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company or its subsidiaries;
(d) (i) make or participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of defined under the Exchange Act) of proxies or consents with respect to vote, whether subject the election or removal of directors or any other proposal (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation); (ii) seek or knowingly encourage election to or exempt from representation on the proxy rulesBoard, or nominate or recommend the nomination of any candidate to the Board, or the removal of any member of the Board, or call or seek to advisecall, encourage directly or indirectly, any special meeting of shareholders of the Company for any reason whatsoever; (iii) make any stockholder proposal; (iv) seek or advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or Company; (v) engage in any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in course of conduct with the proxy rules purpose of the Securities and Exchange Commission) stockholders causing shareholders of the Company or to vote contrary to the recommendation of the Board on any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters matter presented to the Company’s shareholders for their vote or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within challenging the meaning of Section 13(d)(3) policies of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary Company; or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(gvi) otherwise act, alone or in concert with others, to seek to propose to control or influence the Company management, Board, policies or affairs of the Company;
(e) form, join or in any Subsidiary or any of their respective stockholders or make any public statement way participate in a “group” (as defined under the Exchange Act) with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the securities of the Company (other than (i) any group previously identified prior to the date hereof in the Schedule 13D filed by the Executive and (ii) the Irrevocable Proxy described in Section 16(k));
(f) seek to change the determination or direction of the basic decisions of the Company, the present capitalization or dividend policy of the Company, the Company’s organizational documents or take any Subsidiaryother actions which may impede the acquisition or control of the Company by any person or entity, or otherwise take any action inconsistent with the ownership of securities “solely for the purpose of investment”;
(g) engage in any course of conduct causing the Company’s securities to become eligible for termination of registration pursuant to Section 12(g) of the Exchange Act;
(h) seek, alone make a request (public or otherwise) that the prohibitions set forth in concert with others, this Section 16 be waived or that the Company take any action which would permit the Executive or his Affiliates or Associates to control, change or influence the management, the Board or policies take any of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon actions prohibited by the stockholders of the Company or any Subsidiarythis Agreement;
(i) make any publicly disclosed proposal, public statement, public inquiry disclose (whether via social media platform or public disclosure of otherwise) any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, knowingly encourage or to enter into assist any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do other Person in undertaking any of the actions restricted foregoing.
(k) In addition, during the Standstill Period, the Executive agrees that he will, and will cause each of his Affiliates and Associates to, appear in person or prohibited under clauses by proxy at each meeting of the Company’s stockholders (a“Stockholder Meeting”) through and either (ji) vote all Voting Securities beneficially owned by the Executive or such Affiliate or Associate (or which the Executive or such Affiliate or Associate has the right or ability to vote) (the “Remaining Executive Shares”) at such Stockholder Meeting in favor of any proposal recommended by the Board, or (ii) abstain from voting the Remaining Executive Shares at such Stockholder Meeting. Executive acknowledges and agrees that his attendance at each Stockholder Meeting shall not be, nor be deemed to be, “in protest”. In addition, simultaneously with the execution of this StandstillAgreement, the Executive shall execute and deliver to the Company and the Board an Irrevocable Proxy (in the form attached hereto as Exhibit C) irrevocably granting the Board the power and authority to represent the Executive at any Stockholder Meeting and (aa) vote the Remaining Executive Shares in favor of any proposal advanced by the Board, or take any action that might result (bb) abstain from voting the Remaining Executive Shares, such Irrevocable Proxy to become effective only in the Company having event that and for so long as the Executive fails to make (xx) otherwise appear in person or by proxy at any Stockholder Meeting or (yy) vote the Remaining Executive Shares in the manner set forth in this Section 16(k).
(l) If a public announcement regarding any Change in Control occurs prior to the end of the matters referred Standstill Period, then the Executive’s obligations under this Section 16 shall cease to apply as of the date of the consummation of such Change in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingControl.
Appears in 2 contracts
Samples: Settlement Agreement (Electric Last Mile Solutions, Inc.), Settlement Agreement (Electric Last Mile Solutions, Inc.)
Standstill. During the period commencing with the Effective Date and ending on the third anniversary of the Effective Date (the “Standstill Period”), the Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonwill not, neither Executive nor any and will cause each of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardAffiliates and Associates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectlymanner, alone or in concert with othersothers (in each case, except as approved by purchase, tender offer, exchange offer, through a resolution of the acquisition or control of another person or entity, Board):
(a) acquire ownership (beneficial or otherwise) of more than 19 million shares of Common Stock (together with his Affiliates and Associates, any direct in the aggregate during the Standstill Period) or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyacquire such ownership;
(b) makepropose or effect any tender or exchange offer, merger, consolidation, business combination, recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company or its subsidiaries;
(c) (i) make or participate in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of defined under the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities of the Company directors or any Subsidiary;
other proposal (c) initiate, propose including any “withhold,” “vote no” or “solicit” (similar campaign even if conducted as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposalan exempt solicitation); or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct seek or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, knowingly encourage election or appointment to or representation onon the Board, or to nominate or propose recommend the nomination of any candidate toto the Board, the Board or the removal of any member of the Board, ; or propose (iii) make any matter to be voted upon by the stockholders of the Company or any Subsidiarystockholder proposal;
(id) make any publicly disclosed proposal, public statement, public inquiry disclose (whether via social media platform or public disclosure of otherwise) any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(je) announce an intention to do, knowingly encourage or to enter into assist any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do other Person in undertaking any of the actions restricted foregoing. In addition, during the Standstill Period, the Executive agrees that he will, and will cause each of his Affiliates and Associates to, appear in person or prohibited under clauses by proxy at each meeting of the Company’s stockholders and vote all Voting Securities beneficially owned by the Executive or such Affiliate or Associate (or which the Executive or such Affiliate or Associate has the right or ability to vote) at such meeting (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any favor of the matters referred to in clauses slate of directors recommended by the Board and (ab) through (j) against the election of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with nominee for director not recommended and nominated by the foregoingBoard for election at such meeting.
Appears in 2 contracts
Samples: Separation Agreement (Nikola Corp), Severance Agreement
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, during the Standstill Period, he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on his or its behalf not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other person, individual or entity, by purchase, tender offer, exchange offer, through agreement or business combination or any other manner, beneficial ownership in excess of 12% of the acquisition outstanding shares of Common Stock (based on the latest annual or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities quarterly report of the Company filed with the SEC pursuant to Section 13 or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent 15(d) of the outstanding voting securities of the CompanyExchange Act);
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting Board or oppose the directors nominated by the Board (provided, that such nominees were not nominated in contravention of any voting securities of the Company or any Subsidiarythis Agreement);
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more of their respective Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or the SubsidiariesShareholder Group or any of their respective Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or 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 engage in discussions with, advise, encourage or influence any person with respect to voting or tendering, 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” in support of all of the nominees of the Board at any stockholder meeting;
(e) acquirecall or seek to call or to request the calling of a special meeting of the stockholders of the Company or seek to make or make a shareholder 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, offer encourage or assist any other person to acquire initiate or agree to acquirepursue such a proposal or request) or otherwise acting alone, directly or indirectly, alone or in concert with others, by purchase, exchange seek to control or otherwise, (i) any influence the governance or policies of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryCompany;
(f) arrangepublicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any way participatemanner that would require public disclosure by any of the members of the Shareholder Group or their respective Affiliates or Associates) to obtain any waiver, directly consent under, or indirectly, in any financing for the purchase amendment of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets provision of the Company or any Subsidiarythis Agreement;
(g) otherwise act, alone or in concert with others, to seek to propose to disparage the Company or any Subsidiary member of the Board or any management of their respective stockholders the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or make any public statement with respect otherwise, or to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization communications that are required by an applicable legal obligation or other transaction involving the Company or any Subsidiaryare subject to contractual provisions providing for confidential disclosure;
(h) seekengage in any short sale or any purchase, alone sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in concert with others, to control, change the market price or influence the management, the Board or policies value of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryCompany’s securities;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing.
Appears in 2 contracts
Samples: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Telecommunication Systems Inc /Fa/)
Standstill. Executive Until the Termination Date, the Investor Group agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonthat, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willexcept as otherwise specifically provided in this Agreement, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members no member of the Board, directly or indirectlyInvestor Group shall, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer way or propose to acquire, solicit an offer to sell or agree to acquirein any capacity, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest except for such actions as Nominee may take in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities his capacity as a director of the Company in support of transactions and initiatives approved or any Subsidiary, other than undertaken by the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;Board:
(b) a. make, or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of (the Exchange Act“SEC”)) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting election or removal of any voting securities of the Company directors or any Subsidiaryother matter or proposal;
(c) b. initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the Securities and Exchange CommissionSEC) stockholders of the Company or any Subsidiary for the approval of any stockholder proposals proposal, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange ActAct or otherwise;
c. seek to call, or otherwiseto request the call of, or cause call a special meeting of the stockholders of the Company; or, in its capacity as a stockholder, make a request for or encourage take any action to obtain or attempt to cause or encourage others to initiate retain any such stockholder proposal; or otherwise communicate with list of the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersother Company records;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to d. seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to to, or representation on, or to nominate or propose the nomination of any candidate to, the Board Board, except as specifically contemplated in Section 1; or seek the removal of any member of the Board, or propose a change in the composition or size of the Board;
e. form or join in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act, with respect to any matter Voting Securities, deposit any Voting Securities into a voting trust or subject any Voting Securities to any voting agreement (other than solely with other members of the Investor Group with respect to Voting Securities now or hereafter owned by them in accordance with the terms of this Agreement) or take any other action that would limit or otherwise restrict the ability of the Investor Group to vote or cause to be voted upon the Investor Voting Securities held from time to time in accordance with this Agreement;
f. with respect to the Company or the Voting Securities, (i) otherwise communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act or (ii) participate in, or take any action pursuant to, any “stockholder access” proposal that may be implemented by the stockholders SEC, whether in accordance with former Rule 14a-11 or otherwise;
g. except at the request of the Board, acquire, offer or propose to acquire, or agree to acquire (except by way of stock dividends, stock splits, reverse stock splits or other distributions or offerings made available to holders of any Voting Securities generally), whether by purchase, tender or exchange offer, directly through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (as defined under Section 13(d) of the Exchange Act) or otherwise, any Voting Securities if, as a result of such acquisition, the members of the Investor Group would beneficially own in the aggregate in excess of 14.5% of the then outstanding Voting Securities;
h. except at the request of the Board, seek, propose, participate in, support, facilitate or assist any third party to seek or propose any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any Subsidiaryof its Affiliates or Associates;
(i) make i. except at the request of the Board, enter into any publicly disclosed proposalarrangements, public statement, public inquiry understanding or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing;
j. make any public statement or public disclosure regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs or any of its securities or assets or this Agreement that is inconsistent with the foregoingprovisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or make would require waiver, amendment, nullification or disclose any request or proposal to amendinvalidation of, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, Agreement or take any action that might result in could require the Company having to make a any public announcement regarding disclosure relating to any of such intent, purpose, plan, proposal or condition; or
k. take any action challenging the matters referred to in clauses (a) through (j) validity or enforceability of this StandstillSection 2, or otherwise intentionally take, request the Company or solicit, Board to agree to amend or cause to waive any provision of this Section 2 either publicly or encourage others in a manner that is reasonably likely to take, any action inconsistent with require the foregoingCompany to disclose the request publicly.
Appears in 2 contracts
Samples: Board Nomination Agreement (Magnetek, Inc.), Board Nomination Agreement (Fundamental Global Partners)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, directly during the Standstill Period, he or indirectlyit will not, in any manner (the obligations pursuant to this Section 13 being referred to asand he or it will cause each of such person’s Affiliates or agents or other persons acting on his or its behalf not to, the “Standstill”):and will cause his or its respective Associates not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control business combination or any other manner, beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiarysecurities of any Affiliate of the Company, other if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than the acquisition in the aggregate of less than one-half of one percent 14.99% of the outstanding voting securities shares of the CompanyCommon Stock;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or acquired in the future subject to the limitations set forth in Section 5(a) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, 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 Subsidiariesmeaning 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 2011 Annual Meeting or 2012 Annual Meeting as set forth in this Agreement;
(e) acquireseek, offer in any capacity other than as a member of the Board, to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (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 purchasethis Agreement;
(f) effect or seek to effect, exchange 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 in (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any tender offer or indirect rightsexchange offer, warrants merger, acquisition or options to acquire any assets of other business combination involving the Company or any Subsidiary;
(f) arrangeof its subsidiaries, or in (iii) any way participaterecapitalization, directly restructuring, liquidation, dissolution or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of other extraordinary transaction with respect to the Company or any Subsidiaryof its subsidiaries;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 4(d) or this Section 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of publicly disparage any member of the BoardBoard or management of the Company; provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing.
Appears in 2 contracts
Samples: Shareholder Agreement (Becker Drapkin Management, L.P.), Shareholder Agreement (Navarre Corp /Mn/)
Standstill. Executive 18.1 Subject to Clause 18.2, each of the Sellers agrees that for a period and undertakes that, without the prior written consent of 18 months the Purchaser, from the date of Executive’s this Agreement until Closing (at which time the standstill provisions of the Relationship Agreement and the Standstill and Lock-Up Agreement shall come into force) or, if earlier, termination of employment for any reasonthis Agreement (in accordance with its terms) it will not, neither Executive nor any and will procure that no member of his affiliates or persons or entities acting at his direction or with his assistance its Group will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, acquire or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into knowingly cause or exchangeable foractively encourage or procure any other person to acquire or offer to acquire, any voting interest in any shares or other securities of the Company Purchaser as a result of which it or any Subsidiary, other than the acquisition person including any member of its Group will or may acquire an interest in the aggregate of less than one-half of one percent of the outstanding voting any shares or other securities of the CompanyPurchaser;
(b) announce or make, or in knowingly cause or procure any way participate in, directly other person to announce or indirectly, alone make on behalf of itself or any of any member of its Group or persons acting in concert with othersit or any member of its Group, any “solicitation” (as such term is used in an offer for the proxy rules whole of the Securities and Exchange Commission promulgated pursuant to Section 14 ordinary share capital of the Exchange Purchaser whether by tender offer or scheme of arrangement (under section 896 of the Companies Act) or otherwise (each being a General Offer) or (other than as required by the Code) announce that it or any member of proxies its Group or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity acting in concert with respect to the voting of any voting securities of the Company it or any Subsidiarymember of its Group is interested in acquiring the Purchaser;
(c) initiate, propose or “solicit” (do any act as such term is used in the proxy rules a result of the Securities and Exchange Commission) stockholders of the Company which it or any Subsidiary for the approval member of stockholder proposals whether made pursuant to Rule 14a-8 its Group or Rule 14a-4 any person with which it or any member of its Group is acting in concert may become obliged (under the Exchange Act, Code or otherwise, other applicable law or cause regulation) to announce or encourage or attempt make a General Offer to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with acquire the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersPurchaser;
(d) form, join act in concert with any other person in connection with any offer to acquire control of the Purchaser to be made or announced by that other person or any way participate in a “group” within the meaning member of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;its Group; or
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or act in concert with othersany person with respect to the holding, by purchase, exchange voting or otherwise, (i) disposition of any shares or other securities of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryPurchaser;
(f) arrangesolicit, or make or participate in any way participatesolicitation of, directly or indirectlyseek to persuade, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets shareholders of the Company Purchaser to vote in a particular manner at any meeting of the shareholders of the Purchaser, or requisition or join in requisitioning any Subsidiarygeneral meeting of the Purchaser to consider or vote on a Board Control-Seeking Proposal;
(g) otherwise act, alone actively or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or publicly make any public statement with respect to proposals for any merger, business combination, consolidation, sale, tender offer, consolidation or share exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization involving shares or other transaction involving securities of the Company or any Subsidiary;Purchaser; or
(h) seek, alone enter into any agreement or act in concert with others, any person in relation to control, change or influence the management, the Board or policies any of the Company foregoing.
18.2 The restrictions in Clause 18.1 shall not:
(a) apply if a Seller or any Subsidiarymember of its Group announces an offer under Rule 2.7 of the Code to acquire the Purchaser, or otherwise seektakes any other action which would require that Seller or any member of its Group to make an offer under Rule 9 of the Code, alone or in each case if such offer is recommended by the directors of the Purchaser (and, for the avoidance of doubt, no Seller nor any member of its Group will take any such action unless it has first obtained such a recommendation);
(b) apply if a third party which is not acting in concert with others, election either Seller or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Boardtheir respective Groups makes, or propose any matter to be voted upon by the stockholders announces under Rule 2.7 of the Company Code, an offer to acquire the Purchaser’s issued ordinary share capital (whether such offer is recommended or any Subsidiarynot);
(ic) make apply to the acquisition by any publicly disclosed proposal, public statement, public inquiry pension fund of a Seller or public disclosure any member of any intention, plan, its Group of shares or other securities in the Purchaser provided that the assets of the pension fund are managed under an agreement or arrangement (whether written or oral) inconsistent with the foregoinga third party which gives such third party absolute discretion regarding dealing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillvoting and acceptance decisions; or
(jd) announce an intention apply to do, the acquisition of any interest in shares or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any other securities of the actions restricted Purchaser by any connected fund manager or prohibited under clauses principal trader (a) through (j) of this Standstill, or take any action that might result as defined in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCode).
Appears in 2 contracts
Samples: Agreement for the Sale and Purchase of the Entire Issued Share Capital of Ee Limited (Deutsche Telekom Ag), Agreement for the Sale and Purchase of Shares (Bt Group PLC)
Standstill. Executive (a) Xxxxx and Xxxxxx each agrees that for a period of 18 months from during the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of his affiliates Xxxxx, Xxxxxx and the Xxxxxx Affiliates will not (and they will not assist or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardencourage others to), directly or indirectly, in any manner (manner, without prior written approval of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, acquire directly or indirectly, alone or in concert with others, by purchase, tender offergift, tender, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor (collectively, an “Acquisition”), any voting securities of the Company or any SubsidiaryAnchor, other than the acquisition such that as a result of such Acquisition, each of Xxxxx and Xxxxxx, separately, would maintain beneficial ownership in the aggregate excess of less than one-half of one percent 9.99% of the outstanding voting securities shares of the CompanyAnchor common stock;
(bii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission SEC promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryAnchor;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(diii) form, join join, encourage, influence, advise or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act (other than a group involving Xxxxxx and the Xxxxxx Affiliates, subject to any such Xxxxxx Affiliates executing a joinder to this Agreement) and not including any person or entity that is not a Xxxxxx Affiliate, with respect to any voting securities of Anchor or otherwise in any manner agree, attempt, seek or propose to deposit any securities of Anchor in any voting trust or similar arrangement, or subject any securities of Anchor to any arrangement or agreement with respect to the Company voting thereof (other than any such voting trust, arrangement or agreement solely among Xxxxxx and the SubsidiariesXxxxxx Affiliates, subject to any such Xxxxxx Affiliates executing a joinder to this Agreement) and not including any person or entity that is not a Xxxxxx Affiliate;
(eiv) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (ia) any of the assets, tangible and intangible, direct or indirect, of the Company or any Subsidiary Anchor or (iib) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryAnchor;
(fv) 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 voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any SubsidiaryAnchor;
(gvi) otherwise act, alone or in concert with others, to propose or to seek to propose offer to the Company or any Subsidiary Anchor or any of their respective stockholders or make its shareholders any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving to or with Anchor or the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, Bank or otherwise seek, alone or in concert with others, election to control or appointment change the management, Board of Directors or policies of Anchor or the Bank, to propose or representation onseek any amendment, waiver or modification of the articles of incorporation or bylaws of Anchor, to nominate or propose any person as a director of Anchor who is not nominated by the nomination then incumbent directors (provided that if there is a vacancy on the Board, each of any candidate to, Xxxxx and Xxxxxx may submit suggestions on a confidential basis to the Board or the removal of any member Nominating Committee of the Board for nominees to the Board pursuant to the nomination policy adopted by the Board, provided, however, that any such vacancy created by the resignation or departure of Xxxxx from the Board for any reason shall be filled by Xxxxxx in accordance with Section 1 of this Agreement, or propose any matter to be voted upon by the stockholders shareholders of the Company or any SubsidiaryAnchor;
(ivii) make any publicly disclosed proposaldirectly or indirectly, public statementsell, public inquiry transfer or public disclosure otherwise dispose of any intentioninterest in the shares of Anchor common stock beneficially owned by Xxxxx and Xxxxxx to any person that would reasonably be understood to be the beneficial owner of 5% or more of the outstanding shares of Anchor common stock, planexcept in a transaction approved by the Anchor Board of Directors;
(viii) except in connection with the enforcement of this Agreement, the Annual Meeting Agreement and the Non-Disclosure Agreement, or arrangement passive participation as a class member in any class action (whether written which for avoidance of doubt, shall not include participation as a name or orallead plaintiff) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision event or circumstance occurring prior to the date of this Agreement, initiate or participate, by encouragement or otherwise, in any litigation against Anchor or the StandstillBank or their respective directors or officers, or in any derivative litigation on behalf of Anchor, except for testimony which may be required by law; or
(jix) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do do, any of the actions restricted or prohibited under clauses (ai) through (jviii) of this StandstillSection 2, publicly announce or take disclose any action that might result in the Company having request to make a public announcement regarding be excused from any of the matters referred to in clauses (a) through (j) foregoing obligations of this Standstill, Section 2 or otherwise intentionally take, or solicit, take or cause or encourage others to take, any action or make any statement inconsistent with any of the foregoing.
(b) At any Anchor meeting of shareholders during the Standstill Period, Xxxxx and Xxxxxx agree, with respect to any proposal submitted by any Anchor shareholder to a vote of the Anchor shareholders, to vote all of the Anchor shares beneficially owned by each of Xxxxx and Xxxxxx in accordance with the recommendation of the Board with respect to any such shareholder proposal.
(c) Except as expressly provided herein, each of Xxxxx and Xxxxxx will be entitled to:
(i) vote her or his shares on any other proposal duly brought before any meeting of the shareholders;
(ii) disclose, publicly or otherwise, how she or he intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and her or his reasons for doing so, so long as all such activity is in compliance with the requirements of this Agreement; and
(iii) engage in private communications with shareholders and other third parties as long as such communications are in compliance with the requirements of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by Xxxxx in her capacity as a member of the Board or the Bank Board, provided she acts in good faith in the discharge of her fiduciary duties as a Board member; or (2) the ability of each of Xxxxx and Xxxxxx to engage in discussions relating to the topics listed in Section 2 of this Agreement directly with the President and Chief Executive Officer of Anchor, or upon invitation by the Board as it relates solely to Xxxxxx, with other members of management or the Board.
Appears in 2 contracts
Samples: Standstill Agreement (Lawson Joel S. IV), Standstill Agreement (Anchor Bancorp)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group agrees that, during the Standstill Period, he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any other persons acting on his or its behalf not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other person, individual or entity, by purchase, tender offer, exchange offer, through agreement or business combination or any other manner, beneficial ownership in excess of 15% of the acquisition outstanding shares of Common Stock (based on the latest annual or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities quarterly report of the Company filed with the SEC pursuant to Section 13 or any Subsidiary15(d) of the Exchange Act), other than excluding the acquisition in of equity-based compensation pursuant to Section 13 hereof and the aggregate exercise of less than oneany options or conversion of any convertible securities comprising such equity-half of one percent of the outstanding voting securities of the Companybased compensation;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting Board or oppose the directors nominated by the Board (provided, that such nominees were not nominated in contravention of any voting securities of the Company or any Subsidiarythis Agreement);
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more of their respective Affiliates (provided that any such Affiliate signs a joinder to this Agreement) or to the extent such a group may be deemed to result with the Company or Xxxxxx or any of their respective Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the SubsidiariesCommon Stock, or make, or in any way encourage, influence or 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 engage in discussions with, advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, any Sale Transaction that is not approved by a majority of the Board, 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 any stockholder meeting;
(e) acquirecall or seek to call or to request the calling of a special meeting of the stockholders of the Company or seek to make or make a shareholder 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, offer encourage or assist any other person to acquire initiate or agree to acquirepursue such a proposal or request) or otherwise acting alone, directly or indirectly, alone or in concert with others, seek to control or influence the governance or policies of the Company;
(f) effect or seek to effect (including, without limitation, by purchaseentering into any discussions, exchange 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, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
(f) arrangesecurities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group would beneficially own, or have the right to acquire beneficial ownership of, more than 4.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Shareholder Group which are not actually known by the Shareholder Group to result in any way participatetransferee acquiring beneficial ownership of more than 4.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require members of the Shareholder Group or Xxxxxx to vote in favor of a Sale Transaction that was approved by the Board;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group, Xxxxxx or their respective stockholders Affiliates or make Associates) to obtain any public statement with respect to waiver, consent under, or amendment of any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryprovision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of disparage the Company or any Subsidiarymember of the Board or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise seek, alone or in concert with others, election or appointment to or representation onotherwise, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter communications that are required by an applicable legal obligation and are subject to be voted upon by the stockholders of the Company or any Subsidiarycontractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right or arrangement other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(j) enter into any arrangements, understandings or agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jk) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing; provided, that, notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit Xxxxxx 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 to comply with his fiduciary duties.
Appears in 2 contracts
Samples: Shareholder Agreement (Fuel Systems Solutions, Inc.), Shareholder Agreement (Becker Drapkin Management, L.P.)
Standstill. Executive So long as the Company is in compliance with its obligations under this Agreement, then unless approved in advance by the Board of Directors of the Company, each Holder agrees that neither it nor any of its Representatives acting on behalf of such Holder will, for a period of 18 months from ending immediately after the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members annual shareholders meeting of the BoardCompany in 2016 (and in all events no later than December 31, 2016), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquiremake any proposal to the Board of Directors of the Company, any of the Company’s Representatives or any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including “solicitation” of “proxies” as such terms are defined or propose to acquireused in Regulation 14A of the Exchange Act) offering (i) any business combination, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchasemerger, tender offer, exchange offer, through the acquisition offer or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving the Company or any Subsidiary;
of its subsidiaries, (hii) seekany restructuring, alone recapitalization, liquidation or in concert with others, to control, change or influence the management, the Board or policies of similar transaction involving the Company or any Subsidiaryof its subsidiaries, or otherwise seek, alone or except in concert each case solely in connection with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of contractual arrangements between MSKCC and the Company or its then existing subsidiaries, (iii) any Subsidiary;
(i) make acquisition by MSKCC or any publicly disclosed proposal, public statement, public inquiry or public disclosure of its Affiliates of any intention, planof the Company’s equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the Company, or arrangement (whether written rights or oral) inconsistent with the foregoing, or make or disclose options to acquire interests in any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillCompany’s equity securities representing in aggregate more than one percent (1%) of outstanding voting power in shares of the Company, (iv) any proposal by MSKCC to seek representation on the Board of Directors of the Company; or
(jb) announce form an intention Exchange Act Section 13(d) “group” with any third party to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do take any of the actions restricted set forth in Section 4.1(a);
(c) in the case of MSKCC together with any of its Affiliates, acquire (or prohibited under clauses propose or agree to acquire), of record or beneficially, by purchase or otherwise, any equity securities representing in aggregate more than one percent (a) through (j1%) of this Standstilloutstanding voting power in shares of the Company, or take any action that might result rights or options to acquire interests in the Company having to make a public announcement regarding any of the matters referred to Company’s equity securities representing in clauses aggregate more than one percent (a) through (j1%) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with outstanding voting power in shares of the foregoingCompany.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Actinium Pharmaceuticals, Inc.), Investors’ Rights Agreement (Memorial Sloan-Kettering Cancer Center)
Standstill. Executive During the period commencing on the date hereof and ending on the Standstill Termination Date, without the prior consent of the Company, each Investor agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Affiliates will (and each Investor will cause its Affiliates to not), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquireother than the acquisition of additional shares of Common Stock by (i) the Warrant Holders pursuant to the the Warrant Agreements, (ii) Gavilan pursuant to any right of first offer under the Joint Development Agreement or (iii) the Warrant Holders or Gavilan pursuant to the exercise of Rights associated with the Common Stock owned by the Investors or their respective Affiliates, acquire (or propose to acquire, solicit an offer to sell or agree to acquire), directly of record or indirectly, alone or in concert with othersbeneficially, by purchasepurchase or otherwise, any of the Company Group’s corporate loans, debt securities, Voting Securities, other Company Group securities or all or substantially all of the assets of any member of the Company Group, or rights or options to acquire interests in any of the Voting Securities or other Company Group securities of any member of the Company Group or all or substantially all of the assets of any member of the Company Group;
(b) (i) call a special meeting of the holders of Voting Securities of any member of the Company Group including without limitation by written consent, (ii) seek representation on the Board of any member of the Company Group, (iii) seek the removal of any member of the Board of any member of the Company Group, (iv) solicit consents from securityholders or otherwise act or seek to act by written consent with respect to the Company Group, (v) conduct a referendum of securityholders of any member of the Company Group or (vi) make a request for any securityholder list or other Company Group books and records, whether pursuant to Section 220 of the Delaware General Corporation Law or otherwise;
(c) make any statement or proposal to the Board of any member of the Company Group regarding, or make any public announcement, proposal or offer (including without limitation any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or offer to effect (including without limitation, for the avoidance of doubt, indirectly by means of communication with the press or media):
(i) any acquisition of any of the securities or all or substantially all of the assets of any member of the Company Group, or rights or options to acquire interests in any of the securities or all or substantially all of the assets of any member of the Company Group;
(ii) any business combination, merger, tender offer, exchange offer, through similar transaction or other extraordinary transaction involving any member of the Company Group;
(iii) any restructuring, recapitalization, liquidation or similar transaction involving any member of the Company Group;
(iv) any proposal to seek representation on the Board of any member of the Company Group or otherwise seek to control or influence the management, the Board or policies of any member of the Company Group, including without limitation (A) any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of any member of the Company Group, (B) any material change in the capitalization or dividend policy of any member of the Company Group, (C) any other material change in any member of the Company Group’s management, business or corporate structure, (D) seeking to have any member of the Company Group waive or make amendments or modifications to its organizational documents, or other actions that may impede or facilitate the acquisition or of control of another person or entityany member of the Company Group by any Person, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any Subsidiary, other than the acquisition in the aggregate securities exchange; or (F) causing a class of less than one-half of one percent of the outstanding voting equity securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules Company to become eligible for termination of the Securities and Exchange Commission promulgated registration pursuant to Section 14 12(g)(4) of the Exchange Act;
(v) any request or proposal to waive, terminate or amend the provisions of proxies this Agreement if such request or consents to vote, whether subject to proposal would require the Investor or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities member of the Company or any SubsidiaryGroup to make a public announcement;
(cvi) initiateany proposal, propose arrangement or “solicit” (as such term other statement that is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate inconsistent with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation terms of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;this Agreement, including without limitation this Section 2.1; or
(d) form[reserved]
(e) knowingly instigate, join encourage or assist any way participate in third party (including without limitation forming a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oralsuch third party) to do, or to financeenter into any discussions or agreements with any third party with respect to, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses set forth in Section 2.1(c); or
(af) through (j) of this Standstill, or take any action that might result in which would require any member of the Company having Group to make a public announcement regarding any of the matters referred to actions set forth in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 2.1(c).
Appears in 2 contracts
Samples: Standstill and Voting Agreement, Standstill and Voting Agreement (Sanchez Energy Corp)
Standstill. Executive (a) XXXX agrees that for a period of 18 months from the date of Executive’s termination this Agreement until the first anniversary of employment for any reasonthe date on which KLIM no longer has the right to nominate a KLIM Designee to the Board of Directors pursuant to Section 5.1, neither Executive nor any without the prior written approval of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all the disinterested members of the BoardBoard of Directors, KLIM shall not, directly or indirectly, in and shall cause its Affiliates (including any manner (the obligations pursuant to this Section 13 being referred to asPurchaser) not to, the “Standstill”):directly or indirectly:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersoffer to acquire, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct additional shares of Common Stock or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company, other than Conversion Shares issuable or issued upon conversion of the Notes in accordance with the terms thereof;
(bii) make, engage in, or in any way way, participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section Regulation 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity Person with respect to the voting of, any equity interests of the Company in favor of the election of any person as a director who is not nominated pursuant to the Transaction Documents or by the Board of Directors (or its nominating committee) or in opposition of any individual nominated or designated for appointment or election to the Board of Directors by the Company (including any “withhold,” “vote no” or similar campaign even if conducted as an exempt solicitation);
(iii) nominate any person as a director who is not nominated pursuant to the Transaction Documents or by the Board of Directors (or its nominating committee);
(iv) deposit any equity securities in a voting trust or similar contract or agreement or subject any equity securities to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any equity securities (in each case, other than to the Company or a Person specified by the Company in a proxy card (paper or electronic) provided to stockholders of the Company by or on behalf of the Company);
(v) make any public announcement with respect to, enter, agree to enter, 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 Subsidiaryof its Subsidiaries, or purchase of a material portion of the assets, properties or equity securities of the Company, other than acquisitions of Conversion Shares pursuant to the Transaction Documents in accordance with the terms thereof;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(dvi) form, join or in any way participate in a “group” within the meaning of (as defined in Section 13(d)(3) of the Exchange Act Act), or knowingly advise, assist or encourage, or enter into any agreement with, any other Person, in connection with any action prohibited by this Section 4.3(a);
(vii) advise or knowingly assist or knowingly encourage or enter into any discussions, negotiations, agreements, or arrangements with any other Persons in connection with the matters prohibited by Section 4.3(a);
(viii) make public disclosure inconsistent with the requirements of this Section 4.3(a), or take any action that would reasonably be expected to require the Company to make any public disclosure with respect to any voting securities of the Company or the Subsidiaries;matters set forth in this Section 4.3(a); or
(eix) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of disclose any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; orforegoing.
(jb) announce an intention to doNotwithstanding Section 4.3(a), or to enter into any arrangement or understanding with others the foregoing provisions of Section 4.3(a): (whether written or orali) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having shall not restrict KLIM’s ability to make a confidential proposal to the Board of Directors that is not required to be publicly disclosed under applicable law, (ii) shall not, and are not intended to restrict in any manner how KLIM or its Affiliates votes their Conversion Shares or exercises any rights under this Agreement or any other Transaction Document, and (ii) shall not, and are not intended to restrict in any manner KLIM or its Affiliates (A) from purchasing, holding or trading any Notes, (B) in their respective capacity as a lender of the Company or any of its Affiliates (including exercising, protecting, preserving or enforcing any rights, interests or remedies and/or taking any other actions, in each case in such capacity), or (C) from making any public announcement regarding or statement (each, a “Response”) in response to any public announcement, proposal, offer or solicitation made by any other Person, provided, that at least five (5) Business Days prior to making any such Response, KLIM or its Affiliates shall provide the Company with prior written notice of KLIM’s or its Affiliate’s intention to make the Response and a draft of such Response, and the Company shall have a reasonable opportunity to provide comments to the draft Response, which comments shall be considered by KLIM or its Affiliate (as applicable) in good faith if timely provided.
(c) Notwithstanding Section 4.3(a), the restrictions set forth in this Section 4.3 shall terminate and be of no further force and effect if: (i) the Company enters into a definitive agreement with respect to, or publicly announces that it plans to enter into, a transaction involving more than fifty percent (50%) of any class of the matters referred Company’s equity securities, or all or substantially all of the Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance, or otherwise), (ii) any Person or group publicly announces or commences a tender or exchange offer to in clauses acquire more than fifty percent (a) through (j50%) of this Standstillany class of the Company’s equity securities, (iii) a change of a majority of the membership of the Board of Directors (excluding any change approved by a majority of the directors serving on Board of Directors prior to such change), or otherwise intentionally take, or solicit, or cause or encourage others to take, (iv) any action inconsistent with Event of Default under the foregoingNotes has occurred and is continuing.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Douglas Elliman Inc.), Securities Purchase Agreement
Standstill. Executive agrees that for (a) For a period of 18 twelve months from following the date of Executive’s termination of employment for any reasonthis Agreement, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe Vendor shall not, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardPurchaser, directly or indirectly, which consent may be given on such terms and conditions as the Purchaser may determine: (i) in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, agree to acquire or make any proposal or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone any unissued or in concert with othersoutstanding securities of the Corporation or propose or offer to enter into, by directly or indirectly, any amalgamation, plan of arrangement, merger or business combination involving the Corporation and its Affiliates or to purchase, tender offerdirectly or indirectly, exchange offerall or substantially all of the assets of the Corporation and its subsidiaries, through taken as a whole; (ii) directly or indirectly “solicit” or participate or join with any person in the acquisition or control “solicitation” of another person or entityany “proxies” (as such terms are defined in the Securities Act (Ontario)) to vote, or otherwise, seek to influence any direct or indirect beneficial interest in any person with respect to the voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forof, any voting securities of the Company Corporation; (iii) otherwise act alone or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone jointly or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose control or to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board board of directors or policies of the Company Corporation; (iv) solicit, facilitate or encourage any transaction to acquire assets of the Corporation and/or one or more of its subsidiaries representing 20% or more of the consolidated assets or contributing 20% or more of the consolidated revenue of the Corporation and its subsidiaries, taken as a whole, or acquire 20% or more of the Common Shares (an “Acquisition Transaction”) other than a transaction by the Purchaser or any Subsidiary, of its Affiliates or otherwise seek, alone any person acting jointly or in concert with othersthe Purchaser; (v) enter into, election continue or appointment to participate in any discussions or representation onnegotiations regarding an Acquisition Transaction, or furnish to nominate or propose the nomination of any candidate to, the Board or the removal of other person any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement information with respect to any provision the business of the Standstill; or
Corporation or its properties, operations, prospects or conditions (jfinancial or otherwise) announce in connection with an intention to doAcquisition Transaction or otherwise cooperate in any way with, or to enter into assist or participate in, facilitate or encourage, any arrangement effort or understanding attempt of any other person (other than the Purchaser or any of its Affiliates or any person acting jointly or in concert with others (whether written or oralthe Purchaser) to do, do or to finance, intentionally advise, enable, assist or encourage others seek to do any of the actions restricted foregoing; or prohibited under clauses (avi) through (j) of this Standstilladvise, assist, encourage or take act jointly or in concert with any action that might result other person in the Company having to make a public announcement regarding connection with any of the matters referred to foregoing, other than the Purchaser or any of its Affiliates or any person acting jointly or in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent concert with the foregoingPurchaser.
(b) For greater certainty, and notwithstanding anything else in Section 6(a), Section 6(a) shall not apply to any investment fund or product managed by GCIC Ltd., the manager of the Vendor, (the “Manager”) or any of its affiliates, other than the Vendor, unless such fund or product is managed by XXX, the lead portfolio manager of the Vendor.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.), Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.)
Standstill. Executive agrees that (a) Subject to the terms and conditions of this Section 5.1, for a period of 18 months from following the date of Executive’s termination of employment for any reasonhereof, neither Executive the Investor nor any of his affiliates or persons or entities acting at his direction or with his assistance its Affiliates will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities prior approval of the Company;:
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(ei) acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase, merger, take-over bid, business combination or otherwise, individually or acting jointly or in concert with any other Person (as determined in accordance with Section 1.9 of NI 62-104, hereinafter referred to as “Acting Jointly or in Concert”), any voting securities of the Company and/or Convertible Securities (a “Share Transaction”) if such Share Transaction would result in the Investor and its Affiliates having, directly or indirectly, beneficial ownership of, or control or direction over, more than 19.9% of an outstanding class of voting securities of the Company (calculated in accordance with Section 1.8 of NI 62-104);
(ii) directly or indirectly, make, or in any way participate in, any solicitation of proxies to vote, or encourage, seek to advise or influence any other Person (other than an Affiliate of the Investor) with respect to the voting of any voting securities of the Company (other than in respect of the voting securities of the Company held by the Investor pursuant to subsection (a)(i) of this Section 5.1 or Section 5.1(c));
(iii) otherwise act alone or in concert with others, by purchase, exchange or otherwise, (i) any of others to seek to control the assets, tangible and intangible, management of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or Company, other than through any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment Board Designee that may be elected to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(iiv) make enter into any publicly disclosed proposaldiscussions, public statementarrangements, public inquiry understandings or public disclosure of any intentionagreements, plan, or arrangement (whether written or oral) inconsistent , with, or advise, finance, aid, assist or encourage any other Person with respect to the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or ; or
(v) make any public announcement with respect to any provision the foregoing, except as may be required by applicable law, regulatory authorities or stock exchanges.
(b) The restrictions contained in Section 5.1(a) shall terminate immediately upon the earlier of (each a “Spring Event”):
(i) the date on which the Company or the Board announces an intention to agree or agrees with a Third Party to a merger, amalgamation, arrangement or similar transaction or the sale, directly or indirectly, of all or substantially all of the Standstillassets of the Company (collectively, a “Transaction”) which, if such Transaction is successfully completed, will result in shareholders of the Company holding less than 50% of the outstanding voting securities of the resulting corporation or entity;
(ii) the date on which the Company enters into an agreement with a Third Party pursuant to which the Company has agreed to support and recommend, or announces its support for or recommendation in favour of, a take-over bid or tender or exchange offer for more than 50% of the outstanding voting securities of the Company made by a Third Party (or an Affiliate of such Third Party);
(iii) the date upon which a Third Party makes an unsolicited take-over bid or tender or exchange offer for more than 50% of the outstanding voting securities of the Company, or announces an intention to do so;
(iv) the date on which the Company or any of its Affiliates agrees to the transfer, sale or other disposition, directly or indirectly, of all or substantially all of the assets of the Company, on a consolidated basis, or announces an intention to do so; or
(jv) announce the date on which a Third Party (together with any Affiliates) enters into an intention agreement to doacquire, or acquires, (A) direct or indirect beneficial ownership of, (B) the right to exercise control or direction over, or (C) a combination of direct or indirect beneficial ownership of and the right to exercise control or direction over securities of the Company, which together with any securities already directly or indirectly held or controlled by the Third Party and its Affiliates, in aggregate would constitute more than 50% of the voting rights attached to the outstanding voting securities of the Company.
(c) The restrictions in this Section 5.1 shall not prevent the Investor or any of its Affiliates from acquiring securities of the Company where such acquisition results from the Investor’s or any of its Affiliates’ acquisition of the securities of a Person or company which acquired the securities of the Company without the Investor’s solicitation or breach of this Agreement, provided that the primary assets of such Person are not Common Shares, voting securities or other securities convertible into Common Shares.
(d) Notwithstanding anything in this Section 5.1, the Investor shall be permitted at any time to make a confidential proposal to the Board regarding any of the transactions or activities contemplated in Section 5.1(a), to enter into confidential discussions or negotiations with the Board with respect to the terms of any such transactions or activities and to enter into any arrangement or understanding agreement with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having providing for or relating to make a public announcement regarding the consummation of any of the matters referred to in clauses (a) through (j) of this Standstill, such transactions or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingactivities.
Appears in 2 contracts
Samples: Investor Rights Agreement (Skeena Resources LTD), Option Agreement (Skeena Resources LTD)
Standstill. Executive agrees that for For a period of 18 months from commencing on the date hereof and ending on the earlier of Executive(i) thirty-six (36) months following the effective date of the Merger and (ii) the date upon which the Shareholder no longer has the right to nominate at least one (1) director to the Company’s termination board of employment for directors (the “Board”) pursuant to the Governance Agreement, the Shareholder shall not, without the prior written consent of the Company, directly or indirectly:
a. acquire, offer to acquire, or agree to acquire ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (“Exchange Act”)), by purchase or otherwise, any reasonadditional shares of Common Stock, neither Executive nor or any rights or options to acquire any such securities or any securities convertible into such securities; provided that, in the event that at any time, whether due to an increase in the total outstanding shares of his affiliates or persons or entities acting at his direction or with his assistance willCommon Stock, unless specifically invited in writing a sale of shares of Common Stock by the Board, acting by resolution approved by a majority of all members Shareholder or otherwise (made in compliance with the provisions of the Boardlock-up agreement dated as of the date hereof with the Shareholder, as same may be amended from time to time (the “Lock-Up Agreement”), the Shareholder beneficially owns, directly or indirectly, in Common Stock representing less than the Shareholder Maximum Ownership Percentage, the Shareholder may acquire additional shares of Common Stock or rights or options to acquire any manner such securities or any securities convertible into such securities; provided, further, that the Shareholder’s ownership percentage will not exceed the Shareholder Maximum Ownership Percentage;
b. call or seek to call any meeting of the stockholders of the Company;
c. submit, or participate with others that submit, any stockholder proposals for the vote or consent (the obligations collectively, “vote”) of stockholders (whether pursuant to this Section 13 being referred to as, Rule 14a-8 under the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entityExchange Act, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than proposal for consideration by the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyBoard;
(b) d. solicit “proxies” or make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Commission) for proxies for any stockholder proposals of the Company or nominations of candidates for election as directors or trustees of the Company;
e. form or join in a partnership, syndicate or other group, including, without limitations, a “group” as defined under Section 14 13(d) of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the Shareholder Shares, or deposit any Shareholder Shares in a voting of any voting securities trust, arrangement or agreement, except for such actions that may be permitted under the Lock-Up Agreement;
f. explicitly or implicitly, publicly or privately: (i) encourage, recommend, advise, finance or urge others to put forward stockholder proposals of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders nominations with respect to directors/trustees of the Company or enter into any Subsidiary arrangements with any other person in connection with any of the foregoing as they relate to the Company; (ii) indicate support or approval for the approval of any stockholder proposals whether made pursuant or nominations relating to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause Company that are not otherwise approved by the Board in accordance with the Articles; (iii) solicit or encourage others to initiate vote against any such stockholder proposalmatter recommended by the Board in accordance with the Articles; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(div) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, act alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options others to acquire any assets of the Company or any Subsidiary;
(f) arrangeseek control of, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, effect a change or influence the managementto, the Board management or policies of the Company or any SubsidiaryCompany, or unless otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, approved by the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent in accordance with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillArticles; or
(j) announce an intention g. take or seek to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage seek to cause or solicit others to take, take any action inconsistent with any of the foregoing as they relate to the Company. Notwithstanding the foregoing, this Agreement will not be construed to preclude, prohibit, restrict or otherwise require the Shareholder to take any actions that are permitted or contemplated by the Governance Agreement or the Company’s Articles.
Appears in 2 contracts
Samples: Merger Agreement (TEKMIRA PHARMACEUTICALS Corp), Merger Agreement (TEKMIRA PHARMACEUTICALS Corp)
Standstill. Executive agrees that During the term of his employment and for a period of 18 six months from after the date of the Executive’s termination of employment for any reasonis terminated, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardshall not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone indirectly or in concert with othersany other person, engage in any of the following:
(i) purchase, offer to purchase, or agree to purchase or otherwise acquire, by means of a purchase, tender offer, or exchange offer, through the acquisition business combination or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants other manner (including rights or options to acquireacquire such ownership), (x) beneficial ownership of any common stock of the Company (“Common Stock”), or securities convertible into or exchangeable forfor Common Stock of the Company, that would result in the Executive, the Executive’s affiliates, and the members of any “group” of persons with which the Executive or his affiliates are acting in concert beneficially owning, in the aggregate (taking into account shares of Common Stock issuable upon conversion or exchange of any securities held by such the Executive and such other persons), more than 14.9% of the voting securities power of the outstanding Common Stock, or (y) material beneficial ownership of any debt obligations on hotel properties owned by the Company or any of its consolidated subsidiaries or any material assets owned by the Company or any of its consolidated subsidiaries;
(ii) other than in his capacity as an officer or director of the Company, seek or propose to influence, advise, change or control the management, Board, governing instruments or policies or affairs of the Company or any Subsidiaryof its affiliates, other than including, without limitation, by means of a solicitation of proxies or seeking to influence, advise or direct the acquisition in the aggregate vote of less than one-half any holder of one percent of the outstanding voting securities of the Company;; or
(biii) makebe employed by any person (other than NorthStar) that, directly or through its affiliates, engages in any way participate inof the foregoing. Notwithstanding anything in this Section 7(d) to the contrary, no action described above taken by NorthStar (whether directly or indirectly, alone voluntarily or involuntarily) shall be considered to be a violation of this Section 7(d) by Executive. Exercise of options, conversion of LTIP Units, vesting and delivery of shares of Common Stock pursuant to equity or other awards, plans and arrangements and any other Common Stock received or otherwise acquired by the Executive in concert connection with others, any “solicitation” (or as such term is used in the proxy rules a result of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity Executive’s employment with respect to the voting of any voting securities of the Company or any Subsidiary;
(cservice on its Board are not prohibited by this Section 7(d). In addition, if persons with whom the Executive has in no way participated, assisted or cooperated with have taken actions that would be prohibited by Sections 7(d) initiate, propose or above such that the Company would be considered to be in “solicitplay” (as such term is used in the proxy rules through no act of the Securities and Exchange Commission) stockholders of Executive, the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented Executive will no longer be subject to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning limitations of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSections 7(d).
Appears in 2 contracts
Samples: Employment Agreement (Morgans Hotel Group Co.), Employment Agreement (Morgans Hotel Group Co.)
Standstill. Executive agrees that for a period of 18 12 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 2 contracts
Samples: Employment Agreement (Amedisys Inc), Employment Agreement (Amedisys Inc)
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, Standstill Period and unless specifically invited in writing otherwise approved by the BoardBoard of Directors (other than the Series B Designees), acting by resolution approved by a majority each Holder will not, and will cause each of all members of the Boardits Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition by joining a partnership, limited partnership, syndicate or control of another person or entity, other 13D Group or otherwise, (A) Beneficial Ownership of any direct Voting Securities, Derivative Securities or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting other securities of the Company or any Subsidiaryrights to acquire (whether currently, other than upon lapse of time, following the acquisition in satisfaction of any conditions, upon the aggregate occurrence of less than one-half of one percent any event or any combination of the outstanding voting foregoing) any Voting Securities, Derivative Securities or any other securities of the Company, other than (i) the acquisition of the shares of the Series B Stock pursuant to the Purchase Agreement, (ii) shares of Common Stock and other securities, if any, issuable upon the conversion of the Series B Stock, (iii) the acquisition of Voting Securities pursuant to Sections 4.2 and 4.3 hereof, (iv) the acquisition of Voting Securities and Derivative Securities as a result of any stock splits, stock dividends or other distributions, recapitalizations or offerings made available by the Company to holders of Voting Securities or Derivative Securities generally, but only to the extent any such securities are owned by a Holder, (v) in a transaction in which any Holder acquires an interest in an entity that owns shares of Voting Securities of the Company representing 2% or less of the Total Voting Power, or (vi) any acquisition of Voting Securities approved by a majority of the Directors (other than the Series B Designees) (clauses (i) through (vi) are referred to collectively as "Permitted Acquisitions") or (B) the Company or any of its Subsidiaries or all or substantially all of the assets of the Company or any of its Subsidiaries except pursuant to Section 4.2 hereof or as approved by a majority of the Directors (other than the Series B Designees);
(b) make, or engage in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " (as such term is used in within the proxy rules meaning of the Securities and Exchange Commission promulgated pursuant to Section 14 of Rule 14a-1 under the Exchange Act) of proxies or consents relating to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity election of directors with respect to the voting of Company, or become a "participant" in any voting securities "election contest" (within the meaning of the Company or any SubsidiaryExchange Act) seeking to elect directors not nominated by the Board of Directors, other than nominees for director who are to be elected by the Holders of Series B Stock in accordance with the Certificate of Designations;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage induce or attempt to cause or encourage others induce any other Person to initiate any such stockholder proposal; proposal to seek election to or otherwise communicate with seek to place a representative on the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation Board of proxies or consents or matters presented Directors (except pursuant to the Company’s Certificate of Designations) or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the BoardBoard of Directors of the Company);
(d) in any manner, agree, attempt, seek or propose to deposit any matter to be voted upon by the stockholders Voting Securities, Derivative Securities or any other securities of the Company or any Subsidiaryrights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Voting Securities, Derivative Securities or other securities of the Company in any voting trust or similar arrangement (other than any such voting trust or similar arrangement among two or more Holders);
(ie) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of announce any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, ; or
(f) form or make or disclose any request or proposal to amend, waive or terminate any provision join in the formation of this Standstill or seek permission to or make any public announcement a 13D Group with respect to any provision Voting Securities, other than any such "group" consisting exclusively of Holders and any Affiliates of the Standstill; orHolders;
(jg) announce an intention to doexcept as provided in Section 4.2, finance (or to enter into arrange financing for) any arrangement or understanding Person in connection with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted foregoing; provided, however, that nothing in this Section 3.1 shall (i) limit any rights of the Investors under each of the Purchase Agreement, Certificate of Designations, and Registration Rights Agreement, (ii) prohibit any individual who is serving as a Director, solely in his or prohibited under clauses her capacity as a Director, from (ax) through exercising his or her fiduciary duties, (jy) taking any action or making any statement at any meeting of this Standstillthe Board of Directors or of any committee thereof, or take (z) making any action that might result in statement or disclosure required under federal securities Laws or other applicable Law, (iii) restrict any disclosure or statements required to be made by any Investor under applicable Law, or (iv) limit the Company having to make a public announcement regarding any rights of the matters referred Investors pursuant to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 4.2 hereof.
Appears in 2 contracts
Samples: Investors' Rights Agreement (Phillips Van Heusen Corp /De/), Investors' Rights Agreement (Phillips Van Heusen Corp /De/)
Standstill. Executive agrees that Without Buyer’s or Seller’s consent, as applicable, Seller and Buyer, respectively, shall not, and shall cause their respective Exchange Act Affiliates not to, for a period of 18 months two years from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
Agreement: (a) purchase or otherwise acquire, offer or propose to acquireoffer, solicit an offer to sell seek, propose, or agree to acquire, directly ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any (i) securities of the other Party or indirectlyany of its Exchange Act Affiliates, as applicable (a “Public Counterparty”), or (ii) direct or indirect rights or options to acquire any such securities described in Section 5.7(a)(i) or any securities convertible into any such securities described in Section 5.7(a)(i) (collectively, the securities described in Section 5.7(a)(i) and Section 5.7(a)(ii) are “Securities”); (b) seek or propose, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or to control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person the management, the board of directors or entity with respect to the voting of any voting securities policies of the Company or any Subsidiary;
Public Counterparty, including a proposal pursuant to Rule 14a-8; (c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangemake, or in any way participate, directly or indirectly, in any financing for “solicitation” of “proxies” (as such terms are used in the purchase proxy rules under the Exchange Act and the regulations thereunder) to vote, or seek to advise or influence any Person with respect to the voting of any voting securities or securities convertible or exchangeable into or exercisable for of a Public Counterparty; (d) make any voting securities or assets of the Company proposal or any Subsidiary;
(g) otherwise actstatement regarding any proposal, alone whether written or in concert with othersoral, to seek to propose to the Company board of directors of a Public Counterparty or any Subsidiary director or officer of a Public Counterparty or otherwise make any public announcement or proposal whatsoever with respect to any other transaction or proposed transaction between the Parties, any of a Public Counterparty’s security holders, or any of their respective stockholders Exchange Act Affiliates, including any acquisition, tender or make any public statement with respect to any exchange offer, merger, sale of assets or securities, or other business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
unless (i) make any publicly disclosed the Public Counterparty’s board of directors or its designated representatives have requested in advance the submission of such a proposal, public statement(ii) such proposal is directed to the Public Counterparty’s board of directors or its designated representatives, public inquiry or public disclosure of any intention, plan, or arrangement and (whether written or oraliii) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to such proposal is approved in advance by the Public Counterparty’s board of directors; or (e) providing financing (including guarantees), in whole or in part, to any provision of the Standstill; or
(j) announce an intention Person with respect to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (aa)-(d) through (j) above of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 5.7.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Spruce Power Holding Corp), Asset Purchase Agreement (New Jersey Resources Corp)
Standstill. Executive agrees that for For a period of 18 months five years from the date Closing Date (as such term is defined in Section 2(a)(i) of Executive’s termination of employment for any reasonthe Stock Purchase Agreement), neither Executive nor LDC shall not, and shall not permit any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Affiliates to, directly or indirectly, in any manner (i) without the obligations pursuant to this Section 13 being referred to as, prior written consent of the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersCompany, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, agree to acquire or securities convertible into or exchangeable for, offer to acquire beneficial ownership of any voting securities of the Company or direct or indirect rights or options to acquire such beneficial ownership (including, without limitation, any Subsidiary, other than the voting trust certificates representing such securities) if such acquisition would result in the aggregate beneficial ownership by LDC and all Affiliates of less than one-half LDC of one percent voting securities having voting power equal to or in excess of 15% of the outstanding then aggregate voting securities power of the Company;
, (bii) enter, propose to enter into, solicit or support any merger or business combination or change of control or other similar transaction involving the Company or any of its subsidiaries, or purchase, acquire, propose to purchase or acquire or solicit or support the purchase or acquisition of any portion of the business or assets of the Company or any of its subsidiaries other than in the ordinary course of business, (iii) initiate or propose any matter for submission to a vote of the shareholders of the Company or make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" (as such term is terms are used in the proxy rules of promulgated by the Securities and Exchange Commission promulgated pursuant to Section 14 of SEC under the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise or influence any person with respect to the voting of, the Common Stock or any other voting securities of the Company or request or take any action to obtain any list of shareholders of the Company for such purposes, (iv) form, join or in any way participate in any group (other than a group composed solely of LDC and its Affiliates) formed for the purpose of acquiring, holding, voting or disposing of or taking any other action with respect to the Common Stock or any other voting securities of the Company that would be required under Section 13(d) of the Exchange Act to file a Schedule 13D with respect to such voting securities, (v) deposit any shares of Common Stock or any other voting 21 21 securities of the Company in a voting trust or enter into any voting agreement or arrangement with respect thereto, (vi) seek representation on the Board (other than as contemplated by Section 7(b) of the Stock Purchase Agreement), the removal of any directors from the Board or a change in the size or composition of the Board, (vii) make any request to amend or waive any provision of this Section 3.2, which request would require public disclosure under applicable law, rule or regulation, (viii) disclose any intent, purpose, plan, arrangement or proposal inconsistent with the foregoing (including any such intent, purpose, plan, arrangement or proposal that is conditioned on or would require the waiver, amendment, nullification or invalidation of any of the foregoing) or take any action that would require public disclosure of any such intent, purpose, plan, arrangement or proposal, (ix) take any action challenging the validity or enforceability of the foregoing, (x) assist, advise, encourage or influence in any manner whatsoever negotiate with any person with respect to, or entity seek to do, any of the foregoing or (xi) take, or solicit, propose to or agree with any other person to take, any similar actions designed to influence the management or control of the Company. Nothing in this Section 3.2 shall (i) prohibit or restrict LDC or its Affiliates from responding to any inquiries from any shareholders of the Company as to LDC's or any such Affiliate's intention with respect to the voting of shares of Common Stock or any other voting securities of the Company beneficially owned by LDC or any Subsidiary;
(c) initiate, propose or “solicit” (such Affiliate so long as such term response is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate consistent with the Company’s terms of this Agreement, (ii) prohibit the purchase or its Subsidiaries’ stockholders other acquisition of beneficial ownership of Common Stock or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any other voting securities of the Company in compliance with Section 3.2(i) or (iii) restrict the Subsidiaries;
(eright of any director on the Board designated by LDC as contemplated by Section 7(b) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, Stock Purchase Agreement to vote on any matter as such designee believes appropriate in light of his duties as a director of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets the manner in which such designee may participate in his capacity as a director of the Company in deliberations or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase discussions at meetings of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination as a member of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingcommittee thereof.
Appears in 1 contract
Samples: Registration Rights Agreement (S a Louis Dreyfus Et Cie Et Al)
Standstill. Executive Purchaser agrees that for a period of 18 months from during the date of Executive’s termination of employment for any reasonBlackout Period, neither Executive other than pursuant to the Purchaser Voting Agreement (as defined in the Company Stock Purchase Agreement), Purchaser nor any Affiliate of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardPurchaser shall, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(a) acquire“solicit,” or become a “participant” in any “solicitation” of, offer any “proxy ” (as such terms are defined in Regulation 14A under the Exchange Act) from any holder of Common Stock in connection with any vote on any matter (whether or propose not relating to acquirethe election or removal of Directors), solicit an offer to sell or agree or announce its intention to acquire, directly or indirectly, alone or vote with any Person undertaking a “solicitation,” except as otherwise expressly provided in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companythis Agreement;
(b) makeform, join or in any way participate inin any group of Persons formed for the purpose of acquiring, directly holding, voting or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules disposing of the Securities and Exchange Commission promulgated pursuant to Common Stock that would be required under Section 14 13(d) of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from and the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” rules and regulations thereunder (as such term is used in effect on, and based on legal interpretations thereof existing on, the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant date hereof), to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate file a statement on Schedule 13D with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in SEC as a “groupperson” within the meaning of Section 13(d)(3) of the Exchange Act if such group Beneficially Owned Common Stock representing more than five percent of any class of voting stock of the Company then outstanding, unless approved by the majority of the Independent Directors;
(c) grant any proxies with respect to any Common Stock to any Person (other than as recommended by the Board of Directors) or deposit any Common Stock in a voting securities of trust or enter into any other arrangement or agreement with respect to the Company or the Subsidiariesvoting thereof;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(hd) seek, alone or in concert with othersother Persons, to control, change or influence the management, additional representation on the Board of Directors (in addition to that provided for in this Agreement) or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or seek the removal of any member of the Board, Board that is not a Purchaser Designee or propose any matter to be voted upon by a change in the stockholders composition or size of the Company or any Subsidiary;Board of Directors that is inconsistent with this Agreement; or
(ie) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with the foregoingwith, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, finance or assist or encourage others to do any other Persons in connection with any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Samples: Governance Agreement (Cornerstone Therapeutics Inc)
Standstill. Executive Each Investor agrees that that, for the period commencing immediately following the payment of the Expense Reimbursement Amount pursuant to Section 3 (the “Releases Effectiveness Time”) and ending on the earliest of (i) the one year anniversary of the Agreement, or (ii) a period material breach by the Company of 18 months its obligations under this Agreement which is not cured within five (5) Business Days after written notice from any Investor (the date of Executive’s termination of employment for any reason“Standstill Period”), neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance its controlled Affiliates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits controlled Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting alone or in concert with others, :
(i) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by purchase, tender offer, exchange offer, through the acquisition SEC under the Exchange Act or control otherwise) or any notice of another person nomination or entityother business for consideration, or otherwise, nominate any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options candidate for election to acquire, or securities convertible into or exchangeable for, any voting securities the Board (including by way of the Company or any SubsidiaryRule 14a-11 of Regulation 14A), other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyas expressly permitted by this Agreement;
(bii) make, or in any way participate engage in, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a- 1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation”(as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject induce any other person to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of the Common Stock (including any withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(ciii) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant seek to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwiseto request the call of, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with a special meeting of the Company’s stockholders, or its Subsidiaries’ stockholders or others in connection with the solicitation make a request for a list of proxies or consents or matters presented to the Company’s stockholders or its Subsidiaries’ stockholdersto inspect any books and records of the Company;
(div) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and their Affiliates;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) seek to place a Representative or other Affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person, in each case other than securities of the SubsidiariesCompany;
(eviii) other than at the direction of the Board, seek, propose or make any statement (other than to one or more members of the Board or management or its advisors or agents) with respect to, or solicit, or 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 structure or composition of the Board, change in the executive officers of the Company, 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 (it being understood that the foregoing shall not restrict the Investors from tendering Common Stock, receiving payment for Common Stock or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(ix) acquire, announce an intention to acquire, offer or propose to acquire acquire, or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, beneficial ownership of (iA) any interests in the Company’s indebtedness or (B) an aggregate amount of more than 9.99% of the assetsCompany’s outstanding Common Stock (which shall not include Common Stock issued in connection with a stock split, tangible and intangible, of stock dividend or similar corporate action initiated by the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any mergersecurities beneficially owned by any of the Investors or their Affiliates); provided, business combinationhowever, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or nothing herein shall prevent any SubsidiaryInvestor from confidentially seeking a waiver from this provision;
(hx) seek, alone or in concert with others, to control, change or influence short sell the management, the Board or policies of the Company or any SubsidiaryCompany’s capital stock, or otherwise seekpledge, alone hypothecate or put any liens against the Company’s capital stock, except that an Investor may partake in concert customary margin transactions with others, election or appointment to or representation ona broker regulated by FINRA;
(xi) disclose publicly, or privately in a manner that could reasonably be expected to nominate become public, any intention, plan or propose arrangement inconsistent with the nomination foregoing;
(xii) take any action challenging the validity or enforceability of any candidate toprovisions of this Section 4; or
(xiii) enter into any agreement, the Board arrangement or the removal of understanding concerning any member of the Boardforegoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Except as expressly provided in Section 2, each of the Investors shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as it determines in its sole discretion, and (ii) disclose, publicly or propose otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted upon on by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or and the reasons therefor. This Section 4 shall not restrict the ability of the Investors and each of their Affiliates and other Representatives to privately communicate with the Company and its Representatives so long as such private communications would not be reasonably expected to trigger public disclosure of obligations for any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingparty.
Appears in 1 contract
Standstill. Executive (a) Engine Group agrees that for a period of 18 months that, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period, neither Executive it nor any of his affiliates its Affiliates or persons or entities acting at his direction or with his assistance Associates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits Affiliates and Associates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asmanner, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;:
(bi) make, or in any way participate engage in, directly or indirectly, alone or in concert with others, 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 term is used defined in Instruction 3 of Schedule 14A of Regulation 14A under the proxy rules Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in opposition to the recommendation or proposal of the Securities and Exchange Commission promulgated pursuant Board, or recommend or request or induce or attempt to Section 14 of the Exchange Act) of proxies or consents induce any other person to vote, whether subject to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of the Common Stock (including any withholding from voting or any solicitation of consents that improperly seeks to call a special meeting of shareholders) or grant a proxy with respect to the voting of the Common Stock or other voting securities of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(dii) form, join or in any way participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities the Common Stock (other than a “group” that includes all or some of the Company persons identified on Exhibit A, but does not include any other entities or persons not identified on Exhibit A as of the Subsidiariesdate hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Engine 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 through the execution of a joinder to this Agreement;
(eiii) acquiredeposit 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, offer to acquire other than any such voting trust, arrangement or agree to acquire, directly or indirectly, alone or agreement solely among the members of Engine Group and otherwise in concert accordance with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiarythis Agreement;
(fiv) arrangeseek, or encourage any person, to submit nominations in any way participate, directly or indirectly, in any financing furtherance of a “contested solicitation” for the purchase election or removal of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert directors with others, to seek to propose respect to the Company or seek, encourage or take any Subsidiary other action with respect to the election or removal of any of their respective stockholders or directors;
(A) make any public statement proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, business combinationacquisition, consolidation, sale, tender offer, exchange offerrecapitalization, restructuring, reorganization, dissolution, liquidation, recapitalization disposition or other transaction 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 any Subsidiarydisposition activity approved by the Board;
(hvi) seek, alone or in concert with others, representation on the Board, except as specifically contemplated in this Agreement;
(vii) vote for any Director or Directors for election to controlthe Board, change other than those nominated or influence supported by the managementBoard;
(viii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or Director on the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, 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 or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders (other than such encouragement, support or influence that is consistent with the Company’s management or the Board’s recommendation in connection with such matter);
(x) seek to call, or to request the call of, a special meeting of the Company’s shareholders, or make a request for a list of the Company’s shareholders 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 events described in this subsection (xi), a “Sale Transaction”);
(xii) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any matter to be voted upon Common Stock of the Company representing in the aggregate (among Engine Group and its Affiliates and Associates) in excess of 9.9% of the Company’s then outstanding Common Stock (other than securities issued or purchased by the stockholders Company pursuant to a stock split, stock dividend, stock repurchase or similar corporate action initiated by the Company with respect to any Common Stock beneficially owned by Engine Group on the date of this Agreement);
(xiii) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any security of the Company or any Subsidiaryright decoupled from such underlying security held by Engine Group to any 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 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 either (A) in a transaction approved by the Board or (B) to a Third Party who is entitled, and following such transaction continues to be entitled, to file statements on Schedule 13G pursuant to Rule 13d-1(b) or Rule 13d-1(c) of the General Rules and Regulations under the Exchange Act;
(xiv) 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
(xv) 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 to undertake any of the foregoing activities; provided, that, notwithstanding anything in this Section 6(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 Sale Transaction that has been approved by a majority of the Board and has been announced by the Company, Engine Group from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies in connection with such Sale Transaction.
(b) As used in this Agreement:
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of terms “Affiliate” and “Associate” shall have the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of respective meanings set forth in Rule 12b-2 promulgated by the actions restricted or prohibited SEC under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Exchange Act;
Appears in 1 contract
Samples: Shareholder Agreement (Lojack Corp)
Standstill. Executive agrees that for a period of 18 months (a) Except as otherwise set forth in or permitted by this Agreement, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period (as defined below), neither Executive nor each member of the Investor Group shall not, and shall cause its respective Affiliates, Associates, principals, directors, general partners, officers, employees and, to the extent acting on behalf or at the direction of any of his affiliates the foregoing, agents and other representatives (collectively, the “Related Persons” and each a “Related Person”) not to, directly or persons or entities acting at his direction or with his assistance willindirectly, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written approval of the Board:
(i) 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 solicitation of proxies (the obligations pursuant or written consents) with respect to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquireof the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote (or withhold the vote of) any securities convertible into of the Company;
(ii) grant any proxy, consent or exchangeable for, other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or 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 (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(iii) engage in any Subsidiary, other than course of conduct with the acquisition in the aggregate purpose of less than one-half of one percent causing shareholders of the outstanding voting securities Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s shareholders for their vote at any meeting of the Company’s shareholders or by written consent;
(biv) makecall or seek to call, or in any way participate in, directly or indirectlyrequest the call of, alone or in concert with others, any meeting of shareholders, or action by consent resolutions, whether or not such a meeting or consent is permitted by the Articles of Restatement of the Company, as amended (the “Articles”) or the Amended and Restated Bylaws of the Company (the “Bylaws”), including any “town hall meeting”;
(v) act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or seek, facilitate, encourage or take any other action with respect to the appointment, election or removal of any directors;
(vi) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, 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 such term is used broker or agent for compensation submit a proposal or offer for, or make any communication in the proxy rules opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Securities and Exchange Commission promulgated pursuant Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to Section 14 the Company or any of its subsidiaries, (C) any form of tender or exchange offer for the Common Shares, whether or not such transaction involves a change of control of the Company, or any securities or debt of any of the Company’s subsidiaries, (D) any financing transaction involving the Company or any of its subsidiaries, or (E) any liquidation or dissolution of the Company or any of its subsidiaries;
(vii) (A) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, through swap or hedging transactions or other Synthetic Position, or otherwise (the taking of any such action, an “Acquisition”), any ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of, or interest in, any securities or assets of proxies the Company such that after giving effect to any such Acquisition, the Investor Group or consents any of its Related Persons holds, directly or indirectly, in excess of a 2.0% interest in the then-outstanding securities of the Company, (B) purchase or otherwise acquire, or offer, seek, propose or agree to voteacquire, whether subject any interest in any indebtedness of the Company, or (C) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any assets or liabilities of the Company or any right or option to acquire any such asset or liabilities from any person, in each case in this clause (C) other than securities of the Company, and in each case in this paragraph (vii), other than by way of distributions or offerings made available to holders of Common Shares generally on a pro rata basis or pursuant to an Extraordinary Transaction (as defined in Section 6).
(viii) engage in any short sale, forward contract 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 exempt derives any significant part of its value from a decline in the proxy rules, market price or value of the securities of the Company;
(ix) seek to advise, encourage encourage, support or influence in any manner whatsoever any person or entity with respect to the voting of (or execution of a written consent in respect of), acquisition of or disposition of any voting securities of the Company or its subsidiaries;
(x) other than in open market sale transactions whereby the identity of the purchaser is not known, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any Subsidiary;rights decoupled from the underlying securities of the Company held by the Investor Group or any Related Person to any Third Party that, to the Investor Group’s knowledge (after due inquiry, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including, but not limited to, information in documents filed with the SEC), (A) is an Activist Shareholder or (B) would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time or would increase the beneficial ownership interest of any Third Party who, collectively with its Affiliates and Associates, has a beneficial or other ownership interest of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers with no known history of activism or known plans to engage in activism;
(cxi) initiatetake any action in support of or make any proposal or request that constitutes (or would constitute if taken), propose or “solicit” make any statement or have a discussion with any known shareholder of the Company concerning or with the effect of: (as such A) advising, controlling, changing or influencing the Board or management of the Company and its subsidiaries, including any plans or proposals to change the voting standard with respect to director elections, number or term is used of directors or to fill any vacancies on the Board, (B) any change in the proxy rules of the Securities capitalization, stock repurchase programs and Exchange Commission) stockholders practices, capital allocation programs and practices, or dividend policy of the Company or its subsidiaries, (C) any Subsidiary other change in the Company’s or its subsidiaries’ management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Articles 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 approval of stockholder proposals whether made Exchange Act;
(xii) pursuant to Rule 14a-8 or Rule 14a-4 14a-1(l)(2)(iv) under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with shareholders of the Company’s Company or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersothers;
(dxiii) form, join or in any other way participate in a any partnership, limited partnership, syndicate or “group” (within the meaning of Section 13(d)(3) of the Exchange Act or otherwise) with respect to the Company or its securities (other than with members of the Investor Group);
(xiv) demand a copy of the Company’s list of shareholders or its other books and records or make any voting securities request under Sections 2-512 and 2-513 of the MGCL or other applicable legal provisions regarding inspection of books and records or other materials (including stocklist materials) of the Company or the Subsidiaries;any of its subsidiaries;
(exv) acquirecommence, offer to acquire encourage, join as a party, solicit or agree to acquiresupport any litigation, arbitration, derivative action in the name of the Company or any class action or other proceeding against or involving the Company or any of its current or former Company Related Persons (as defined below);
(xvi) make or publicly advance any request or submit any proposal, directly or indirectly, alone to amend, modify or waive the terms of this Section 5 other than through non-public communications with the Company, which the Company may accept or reject in concert with othersits sole and absolute discretion, by purchase, exchange or otherwise, (i) that would not trigger public disclosure obligations for any member of the assets, tangible and intangible, of Investor Group or its Related Persons or reasonably be expected to trigger public disclosure obligations for the Company or any Subsidiary Company Related Persons; or
(xvii) enter into any discussions, negotiations, agreements or understandings with any person or entity with respect to any action the Investor Group is prohibited from taking pursuant to this Section 5, or advise, assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any such 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 5 or elsewhere in this Agreement shall prohibit or restrict the Investor Group or its Related Persons from (iiA) direct communicating privately with members of the Board or indirect rights, warrants or options to acquire any assets executive officers of the Company regarding any matter, so long as such communications are not intended to and would not require any public disclosure of such communications; or (B) privately communicating to any Subsidiary;
of the Investor Group’s current investors publicly available factual information regarding the Company (f) arrangeit being understood by the Investor Group and its current investors that such communications are to be confidential communications). The Investor Group shall not, or in any way participateand shall cause its Related Persons not to, seek to do, directly or indirectly, in through any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets director of the Company or other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Subsidiary;Related Person.
(gb) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision For purposes of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Agreement:
Appears in 1 contract
Samples: Cooperation Agreement (Independence Realty Trust, Inc.)
Standstill. Executive agrees that that, for a period of 18 months two years from the date of Executive’s termination of employment for any reasonthis Agreement, neither Executive nor any of his Executive's affiliates will (or persons will cause or entities acting at his direction or with his assistance willassist others to), unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the Board, directly Company or indirectly, in any manner its Board of Directors: (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options rights to acquire, or securities convertible into or exchangeable for, acquire any voting securities of any issued by the Company or any parent or subsidiary thereof, or of any successor, or any assets of the Company or any Subsidiaryparent or subsidiary or division thereof or of any such successor, other than which may be outstanding on the acquisition in date hereof or subsequently issued during such two year period (except pursuant to the aggregate exercise of less than one-half of one percent of stock options granted to Executive on or before the outstanding voting securities of the Company;
Termination Date); (bii) make, make or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange ActCommission) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity with respect to the voting of of, any voting securities of the Company (or any Subsidiary;
parent or subsidiary thereof); (ciii) initiatemake any public announcement with respect to, propose or “solicit” submit a proposal for, or offer of (as such term is used in the proxy rules of the Securities and Exchange Commissionwith or without conditions) stockholders of any extraordinary transaction involving the Company (or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 parent or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s subsidiary thereof) or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies their securities or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
assets; (div) form, join or in any way participate in a “"group” within the meaning of " (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or foregoing; (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(gv) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change control or influence the management, the Board of Directors or policies of the Company (or any Subsidiaryparent or subsidiary thereof); (vi) disclose any intention, plan or otherwise seekarrangement inconsistent with the foregoing; or (vii) advise, alone assist or encourage any other persons in concert connection with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter foregoing. Executive also agrees during such period not to be voted upon by the stockholders of request the Company or any Subsidiary;
(i) make any publicly disclosed proposalof its representatives, public statementdirectly or indirectly, public inquiry to amend or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
paragraph (jincluding this sentence) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that which might result in require the Company having to make a public announcement regarding the possibility of an extraordinary transaction involving the Company or its securities or assets. Notwithstanding the foregoing, Executive shall be entitled to receive and own all securities distributed in respect of, or issued in exchange for any of the matters referred to voting securities owned by him which were not acquired in clauses (a) through (j) violation of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingAgreement.
Appears in 1 contract
Samples: Separation Agreement (Amfm Inc)
Standstill. Executive agrees that for a period Prior to the Termination Date, except as otherwise provided in this Agreement, without the prior consent of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting the EC Parties shall not, and shall cause their respective Affiliates not to, directly or indirectly (in each case, except as permitted by resolution approved this Agreement):
(a) (i) acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire (except by a majority way of all members stock dividends or other distributions or offerings made available to holders of voting securities of the BoardCompany generally on a pro rata basis), 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 beneficial ownership thereof or any voting rights decoupled from the underlying voting securities in excess of 4.99% of the Company’s then-outstanding Common Stock; or (ii) sell its shares of Common Stock other than in open market sale transactions or through a broker or dealer where the identity of the purchaser is not known, or in underwritten widely dispersed public offerings;
(b) (i) nominate, recommend for nomination, 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 (or in connection with any proposed stockholder action by written consent); (ii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting (or in connection with any action by written consent); (iii) knowingly initiate, encourage or participate in any manner (the obligations pursuant “withhold” or similar campaign with respect to this Section 13 being referred to as, the “Standstill”):any Stockholder Meeting;
(ac) acquireengage in any solicitation of proxies or consents with respect to the election or removal of directors of the Company or any other matter or proposal involving the Company or become a participant in any such solicitation of proxies or consents;
(d) initiate or seek the convening of (or assist any other Person in the convening of) any Stockholder Meeting (or assist any other Person in seeking any such action);
(e) form, offer join or propose in any way knowingly participate in any group or agreement of any kind with respect to acquireany voting securities of the Company, solicit an offer including in connection with any election or removal contest with respect to sell the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting (other than with any other EC Party or one or more of its Affiliates and Associates that agree to acquirebe bound by the terms and conditions of this Agreement);
(f) deposit any voting securities of the Company in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the voting thereof (other than any such voting trust, directly arrangement or indirectlyagreement solely among the EC Parties and their Affiliates and otherwise in accordance with this Agreement);
(g) seek publicly, alone or in concert with others, by purchaseto amend any provision of the Company’s certificate of incorporation or bylaws;
(h) demand an inspection of the Company’s books and records;
(i) engage or continue to engage or use any private investigations firm or other person to investigate any of the Company’s directors, tender offerofficers or employees or any of the Company’s Representatives or use any report or findings of such firm or person;
(i) make any public or private proposal with respect to or (ii) make any public statement or otherwise seek to encourage or advise or assist any Person in so encouraging or advising with respect to: (A) any change in the identity, exchange offernumber or term of directors serving on the Board or the filling of any vacancies on the Board, through (B) any change in the acquisition capitalization or control dividend policy of another person the Company, (C) any other change in the Company’s management, governance, corporate structure, affairs or entitypolicies, or otherwise(D) any Extraordinary Transaction, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any Subsidiary, other than the acquisition in the aggregate securities exchange or (F) causing a class of less than one-half of one percent of the outstanding voting equity securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules Company to become eligible for termination of the Securities and Exchange Commission promulgated registration pursuant to Section 14 12(g)(4) of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(ck) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, make or in any way participate, directly or indirectly, in any financing Extraordinary Transaction (it being understood that the foregoing shall not restrict any EC Party from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets same basis as other stockholders of the Company or from participating in any Subsidiary;
(gsuch transaction that has been approved by the Board, subject to the other terms of this Agreement) otherwise actor make, directly or indirectly, any proposal, either alone or in concert with others, to seek to propose to the Company or the Board that would reasonably be expected to require a public announcement or disclosure regarding any Subsidiary such matter;
(l) publicly make or in any way advance publicly any request or proposal that the Company or the Board amend, modify or waive any provision of their respective stockholders this Agreement;
(m) take any action challenging the validity or make enforceability of this Section 3 unless the Company is challenging the validity or enforceability of this Section 3; or
(n) enter into any public statement negotiations, agreements or understandings with any Third Party with respect to the foregoing, or advise, assist, facilitate encourage or seek to persuade any Third Party to take any action with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or otherwise take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with any of the foregoing.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group and Xxxxxxx agrees that, directly other than as may be required by applicable law, order or indirectlyregulation, in during the Standstill Period, he or it will not, and he or it will cause each of such person’s respective Affiliates, Associates and agents and any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):other persons acting on his or its behalf not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other person, individual or entity, by purchase, tender offer, exchange offer, through agreement or business combination or any other manner, beneficial ownership of shares of the acquisition Common Stock or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting other securities of the Company or any Subsidiary, securities of any Affiliate of the Company (other than (i) the acquisition in of equity-based compensation pursuant to Section 12 hereof and the exercise of any options or conversion of any convertible securities comprising such equity-based compensation and (ii) the direct acquisition by Xxxxxxx of up to an aggregate of less than one10,000 shares of Common Stock in addition to the acquisition or exercise of any equity-half of one percent of the outstanding voting securities of the Companybased compensation he may receive pursuant to Section 12);
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group, Xxxxxxx or one or more of their respective Affiliates with respect to the Common Stock or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) engage in discussions with other shareholders of the SubsidiariesCompany, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or 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 or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, 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 any shareholder meeting;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (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;
(f) effect or seek to effect (including, without limitation, by purchaseentering into any discussions, exchange 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, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of the Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
(f) arrangesecurities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group would beneficially own, or have the right to acquire beneficial ownership of, more than 4.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act); provided that open market sales of securities through a broker by the Shareholder Group or Xxxxxxx which are not actually known by the Shareholder Group or Xxxxxxx, respectively, to result in any way participatetransferee acquiring beneficial ownership of more than 4.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction is approved by a majority of the Board; provided that this paragraph shall not require members of the Shareholder Group or Xxxxxxx to vote in favor of a Sale Transaction that was approved by the Board;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group, Xxxxxxx or their respective stockholders Affiliates or make Associates) to obtain any public statement with respect to waiver, consent under, or amendment of, any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryprovision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of publicly disparage any member of the BoardBoard or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right, or arrangement other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(j) enter into any arrangements, understandings or agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jk) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit Xxxxxx or Xxxxxxx 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.
Appears in 1 contract
Samples: Shareholder Agreement (Becker Drapkin Management, L.P.)
Standstill. Executive 5.1 Each Holder agrees that for a period of 18 months that, from the date hereof to the date that is twelve (12) months following the Closing Date (the “Standstill Period”), none of Executive’s termination it or its Affiliates under its control (or anyone acting on behalf of employment for any reason, neither Executive nor or at the direction of any of his affiliates or persons or entities acting at his direction or with his assistance such Persons) will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, do any of the following unless requested or approved in advance in writing by the Company:
i. engage in any manner (the obligations pursuant to this Section 13 being referred to as, the solicitation of proxies or consents or become a “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or participant” in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any a “solicitation” (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to votecall a special meeting of stockholders), whether subject to or exempt from the proxy rulesin each case, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryCompany;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) ii. form, join or in any way participate in a any “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit F, but does not include any other entities or persons not identified on Exhibit F as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of a Holder 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 securities trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of the Company or the SubsidiariesHolders and otherwise in accordance with this Agreement;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangeiv. seek, or knowingly encourage any Person, to submit nominations in any way participate, directly or indirectly, in any financing furtherance of a “contested solicitation” for the purchase election or removal of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert directors with others, to seek to propose respect to the Company or seek, encourage or take any Subsidiary other action with respect to the election or removal of any of their respective stockholders or directors;
(A) make any public statement proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to any merger, business combinationacquisition, consolidation, sale, tender offer, exchange offerrecapitalization, restructuring, reorganization, dissolution, liquidation, recapitalization disposition or other transaction business combination involving the Holders or their controlled Affiliates and the Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company by such third party prior to such proposal becoming public or any Subsidiary(E) call or seek to call a special meeting of stockholders;
(h) vi. seek, alone or in concert with others, representation on the Board;
vii. knowingly seek to controladvise, change encourage, support or influence any person or entity with respect to the management, the Board voting or policies disposition of any securities of the Company at any annual or any Subsidiaryspecial meeting of stockholders, or otherwise seek, alone or except in concert accordance with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;this Agreement; or
(i) viii. make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or submit any proposal to amend, waive or terminate any provision amend the terms of this Standstill or seek permission to or make any Agreement other than through non-public announcement communications with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having that would not be reasonably determined to make a trigger public announcement regarding disclosure obligations for any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingParty.
Appears in 1 contract
Samples: Senior Secured Convertible Notes Agreement (Comscore, Inc.)
Standstill. Executive agrees that for For a period of 18 months from four years after the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthis Agreement, unless specifically invited in writing by the BoardCompany, acting by resolution approved by a majority of all members of the Boardeach Fund Member and its Representatives will not in any manner, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquireeffect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, solicit an offer or announce any intention to sell effect or agree to acquire, directly cause or indirectly, alone participate in or in concert with othersany way assist or encourage any other Person to effect or seek, by purchaseoffer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of its Affiliates (other than acquisitions of securities representing less than 3% of the Company’s then-outstanding voting securities), including rights or options to acquire such ownership; (ii) any tender offer, or exchange offer, through merger or other business combination involving the acquisition Company or control any of another person its Affiliates (other than tendering into any tender or entityexchange offer initiated by an Unaffiliated Person that the Board does not, within 10 Business Days after the commencement of such offer, recommend against); (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Affiliates, or otherwise(iv) any “solicitation” of “proxies” (as such terms are defined in Rule 14a-1 of Regulation 14A under the Exchange Act, disregarding clause (iv) of Rule 14a-1(l)(2) and including any direct otherwise exempt solicitation pursuant to Rule 14a-2(b)) or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options consents to acquire, or securities convertible into or exchangeable for, vote any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
its Affiliates; (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or in any way participate in a “group” within the meaning of (as defined in Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire any of its Affiliates or agree to acquire, directly or indirectly, alone or otherwise act in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or Person in any way participate, directly or indirectly, in any financing for the purchase respect of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
such securities; (gc) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any mergercontrol, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to controladvise, change or influence the management, the Board Board, governing instruments, shareholders, policies or policies affairs of the Company or any Subsidiary, of its Affiliates; (d) enter into any discussions or otherwise seek, alone or in concert arrangements with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement third party with respect to any provision of the Standstillforegoing; or
or (je) announce an intention to do, or to enter into make any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillpublic disclosure, or take any action that might result force the Company, any of its Affiliates or any other Person to make any public disclosure, with respect to the matters set forth in this Agreement. Each Fund Member agrees during such period that it will not request that the Company having to make a public announcement regarding (or any of the matters referred to in clauses (a) through (j) its Representatives), directly or indirectly, amend or waive any provision of this Standstillparagraph (including this sentence). Notwithstanding anything to the contrary herein, none of the provisions of this Article IV shall apply to any Affiliate of any Fund Member or otherwise intentionally takeits Representatives, unless such Affiliate or solicit, its Representatives are at such time in possession of any material non-public information of the Company received from such Fund Members or cause their Representatives or encourage others to take, any action inconsistent unless such Affiliate is a Permitted Transferee that received a Transfer of Equity Securities in compliance with the foregoingSection 3.1.
Appears in 1 contract
Samples: Stockholders Agreement (Coty Inc /)
Standstill. Executive agrees that for a period of 18 24 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 14 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Samples: Employment Agreement (Amedisys Inc)
Standstill. Executive (a) Purchaser agrees that that, for a period of 18 months two (2) years from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthis Agreement, unless specifically invited in writing by the BoardParent, acting by resolution approved by a majority neither Purchaser nor any of all members of the Boardits Affiliates will, directly or indirectly: (i) effect or seek to effect, or announce any intention to effect or in any manner way encourage any other Person to effect or seek to effect or participate in, (the obligations pursuant A) any acquisition of any securities (or beneficial ownership thereof), or rights or options to this Section 13 being referred to asacquire any securities (or beneficial ownership thereof), the “Standstill”):
or any assets, indebtedness or businesses of Parent or any Subsidiary, (aB) acquire, offer any tender or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition merger or control of another person or entity, or otherwiseother business combination involving Parent, any direct Subsidiary or indirect beneficial interest in any voting securities assets of Parent or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities the Subsidiaries constituting a significant portion of the Company consolidated assets of Parent and the Subsidiaries, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Parent or any Subsidiary, other than the acquisition in the aggregate connection with Purchaser exercising any of less than one-half of one percent its rights under any of the outstanding voting securities of the Company;
(b) makeTransaction Documents, or in any way participate in, directly or indirectly, alone or in concert with others, (D) any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant Commission) or consent to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of vote any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company Parent or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others (other than in connection with the a solicitation of proxies or consents or matters presented to the Company’s by Parent or its Subsidiaries’ stockholders;
Board of Directors); (dii) form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of (as defined under the Exchange Act Act) with respect to any voting securities of the Company or the Subsidiaries;
Parent; (e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(giii) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change control or influence the management, the management or Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination Directors of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
Parent; (iiv) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having which would reasonably be expected to force Parent to make a public announcement regarding any of the types of matters set forth in (i) above; or (v) enter into any discussions or arrangements with any third party with respect to any of the foregoing; provided, however, that nothing in this Section 4.3(a) will prohibit or otherwise restrict the Transactions, Purchaser’s satisfaction of contractual obligations to Royal Dutch Shell PLC or its subsidiaries existing as of the date hereof and as described in Section 5.1(C) of the Farmout Agreement, any sale of Common Stock by Purchaser or the passive ownership by Purchaser of not more than 19.9% of the outstanding Common Stock in the aggregate through one or more transactions. If at any time during such period, Purchaser or any of its Affiliates is approached by any third party concerning any transaction involving any assets, indebtedness or business of, or securities issued by, Parent or any Subsidiary, Purchaser will promptly inform Parent of the nature of such transaction and the parties involved.
(b) Notwithstanding anything to the contrary contained in this Section 4.3, if at any time Parent consents to the taking of any action referred to in clauses (ai)(B) through (ji)(D), (ii) or (iii) of Section 4.3(a) by one or more third parties, Parent shall be deemed to have provided identical consent to Purchaser and its Affiliates, and this StandstillSection 4.3 shall be of no force or effect with respect to such consented-to actions during the pendency of such actions.
(c) Notwithstanding anything to the contrary contained in this Section 4.3, if at any time a third party does any of the acts referred to in Section 4.3(a)(i)(B) or otherwise intentionally take(C) and Section 4.3(b) does not apply, none of Purchaser and its Affiliates will be prohibited from taking any actions set forth in Sections 4.3(a)(i)(B) or solicit(C) during the pendency of such acts, or cause or encourage others provided that Purchaser shall provide Parent with written notice of any such action, including a reasonably detailed description thereof, at least 72 hours prior to take, any action inconsistent with the foregoingtaking such action.
Appears in 1 contract
Samples: Securities Purchase Agreement (Far East Energy Corp)
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reasonThe Stockholder shall not, neither Executive nor shall any of his affiliates its directors, officers, employees, agents, advisors or persons other representatives (“Representatives”) on its behalf, without the prior written consent of Exar or entities acting at his direction its Board of Directors (or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”duly empowered committee thereof):
(a) during the Lock-Up Period:
(1) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options rights to acquire, or securities convertible into or exchangeable for, acquire any voting securities of the Company Exar or any SubsidiarySubsidiary thereof, or of any successor to or person in control of Exar, or any assets (other than the acquisition assets in the aggregate ordinary course of less than one-half business) of one percent Exar or any Subsidiary or division thereof or of any such successor or controlling person; provided, however, that the outstanding Stockholder may acquire voting securities of Exar, or any Subsidiary thereof, or of any successor to or person in control of Exar so long as its aggregate beneficial ownership of Exar, such Subsidiary or such Person does not at any time during the CompanyLock-Up Period exceed 19% of the Exar voting securities (on a fully diluted basis assuming conversion or exercise of all outstanding Exar Derivative Securities); or
(2) or request Exar or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5(a); and
(b) during the period commencing on the Closing Date and ending on the date that is the two (2)-year anniversary of the Effective Time of the Merger:
(1) subject to the Stockholder’s right to designate a representative for nomination by the Board of Directors for election as a director pursuant to Section 7(b) below, nominate any person to the Board of Directors of Exar;
(b2) call or attempt to call a special meeting of the stockholder of Exar;
(3) make, or in any way participate inparticipate, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesSEC), or seek to advise, encourage advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of Exar (including, without limitation, making any public statement in favor or support of any proposal not approved by the Company or any SubsidiaryBoard of Directors of Exar);
(c4) initiatemake any public announcement with respect to, propose or “solicit” submit a proposal for, or offer of (as such term is used in the proxy rules of the Securities and Exchange Commissionwith or without conditions) stockholders of the Company any extraordinary transaction (including a tender offer) involving Exar or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 its securities or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersassets;
(d5) form, join or in any way participate in a “group” within the meaning of as defined in Section 13(d)(3) of the Exchange Act Act, in connection with respect to any voting securities of the Company or the Subsidiariesforegoing;
(e6) acquire, offer to acquire request Exar or agree to acquireany of its Representatives, directly or indirectly, alone to amend or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 5(b).
Appears in 1 contract
Standstill. Executive (a) Each TPG Shareholder agrees that for a period that, until the earlier of 18 months from the three (3) year anniversary of the date hereof or the date on which such TPG Shareholder does not Beneficially Own any Company Ordinary Shares, without the prior written consent of Executive’s termination at least a majority of employment for the Board, such TPG Shareholder shall not, and shall cause its controlled Affiliates not to, directly or indirectly:
(i) acquire, agree to acquire, propose or offer to acquire, or knowingly facilitate the acquisition of, any reasonCompany Ordinary Shares (other than acquisitions involving no more than three percent (3%) of the fully-diluted voting power of the Company Ordinary Shares in the aggregate and, neither Executive nor in any event, such that the TPG Shareholders, together with their controlled Affiliates, shall not own, in the aggregate, 25% or more of the then-outstanding Company Ordinary Shares), other than as a result of any stock split, stock dividend or subdivision of Company Ordinary Shares or in connection with any of his affiliates the transactions contemplated by the Merger Agreement;
(ii) deposit any Company Ordinary Shares into a voting trust or persons similar contract or entities acting at his direction subject any Company Ordinary Shares to any voting agreement, pooling arrangement or similar arrangement or other contract, or grant any proxy with his assistance willrespect to any Company Ordinary Shares, unless specifically invited in writing each case, other than any such voting trust, voting agreement, pooling arrangement or other contract, solely among the TPG Shareholders;
(iii) other than in connection with any matter recommended by the Board, acting by resolution approved by a majority of all members of the Boardenter, directly or indirectly, in any manner (the obligations pursuant agree to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer enter or propose to acquire, solicit an or offer to sell enter into any merger, business combination, recapitalization, restructuring, change in control transaction or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of other similar extraordinary transaction involving the Company or any Subsidiary, other than the of its subsidiaries or an acquisition in the aggregate of less than one-half of one percent 10% or more of the outstanding voting securities assets of the CompanyCompany and its subsidiaries;
(biv) makeother than in connection with any matter recommended by the Board, make or participate or engage in (subject to Section 5.1(b)), any “solicitation” of “proxies” (as such terms are defined under Regulation 14A under the Exchange Act) to vote any Company Ordinary Shares, disregarding clause (iv) of Rule 14a-1(l)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b);
(v) publicly disclose any intention, plan, arrangement or other contract prohibited by, or inconsistent with, the foregoing;
(vi) advise or knowingly assist or knowingly encourage or enter into any negotiations or agreements or other contracts with any other persons in connection with the foregoing;
(vii) with respect to any of the foregoing, (A) form, join or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant subject to Section 14 of the Exchange Act5.1(b)) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any voting securities common stock; (B) call, or seek to call, a meeting of the shareholders of the Company or initiate any shareholder proposal for action by shareholders of the Subsidiaries;
Company with respect to any of the foregoing or (eC) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) take any of the assets, tangible and intangible, of 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 any Subsidiary other type of transaction or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiarymatter described in this Section 5.1;
(fviii) arrange, present at any annual meeting or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets special meeting of the Company Company’s shareholders or through action by written consent any Subsidiary;
(g) otherwise act, alone proposal for consideration for action by shareholders or in concert with others, propose any nominee for election to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or seek the removal of any member of the BoardBoard of Directors, or propose any matter in each case, subject to be voted upon by the stockholders rights of the TPG Shareholders pursuant to Section 2.2; or
(ix) request the Company or any Subsidiary;of its representatives, directly or indirectly, to amend or waive any provision of this Section 5.1; provided that the TPG Shareholders 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 Shareholders.
(b) Notwithstanding the foregoing provisions of this Section 5.1, the foregoing provisions shall not, and are not intended to:
(i) make prohibit any publicly disclosed proposalTPG Shareholder or any of its controlled Affiliates from privately communicating with, public statement, public inquiry or public disclosure of including making any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request offer or proposal to, the Board;
(ii) restrict in any manner how any TPG Shareholder or any of its controlled Affiliates votes their Company Ordinary Shares;
(iii) restrict the manner in which any TPG Director may (A) vote on any matter submitted to amend, waive the Board or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision the shareholders of the StandstillCompany, (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
(jiv) announce an intention to do, restrict any TPG Shareholder or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of its Permitted Transferees from Transferring any Subject Shares to any Permitted Transferees of such TPG Shareholder or any successor of such TPG Shareholder that, in any such case, agrees to be bound by the actions restricted or prohibited under clauses provisions contained in this Agreement.
(ac) through (j) of Nothing set forth in this StandstillSection 5.1 shall prohibit, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, restrict or otherwise intentionally takelimit the ability of any TPG Shareholder or any Affiliate of any TPG Shareholder 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 solicit, or cause or encourage others to take, any action inconsistent with purpose of circumventing the foregoingtransfer restrictions contained in this Agreement.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from Further, at all times during the date of Executive’s termination of employment for any reasonStandstill Period, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members each member of the BoardBarington Group will not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asand will cause each of its Affiliates not to, the “Standstill”):directly or indirectly:
(a) acquireSolicit proxies or written consents of stockholders, conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Voting Securities or become a “participant” (as defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or assist any person or entity not party to this Agreement (a “Third Party”) in any “solicitation” of any proxy, consent or other authority (as defined under the Exchange Act) to vote any shares of the Voting Securities. (b) Encourage, advise or influence any other person or assist any Third Party in encouraging, assisting or influencing any person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any other type of referendum with respect to the Company or the Voting Securities.
(c) Form or join any partnership, limited partnership, syndicate or other group, other than the Barington Group (as comprised as of the date of this Agreement), including a group as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities, or otherwise support or participate in any effort by a Third Party with respect to the matters set forth in clause (a) above.
(d) Present any proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration for action by stockholders, propose any nominee for election to the Board or seek to place on, or remove from, the Board, a director.
(e) Grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for the 2014 Annual Meeting or any subsequent annual meeting during the Standstill Period) or deposit any of the Voting Securities held by the Barington Group in a voting trust or subject them to a voting agreement or other arrangement of similar effect.
(f) Other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or propose to acquire, solicit an offer agree to sell or agree to acquire, directly or indirectly, alone through swap or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, hedging transactions or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities security of the Company or any Subsidiaryright decoupled from such underlying security held by the Barington Group to any Third Party that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other than the acquisition ownership interest in the aggregate of less than one-half of one percent 5% or more of the shares of Common Stock outstanding voting 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 the Board.
(g) Make any request under Section 220 of the DGCL, other than any request made by a director under Section 220(d).
(h) Threaten, file or otherwise commence or cause to be threatened, filed or otherwise commenced, any complaint, litigation, claim, action, suit or similar proceeding (collectively, a “Legal Proceeding”) against the Company or its Affiliates, directors, officers or employees (except (i) solely in connection with enforcing the Barington Group’s rights hereunder or (ii) any Legal Proceeding in a capacity other than as a stockholder or director of the Company and only with respect to matters not relating to corporate activities or actions) unless approved in writing in advance by the Company.
(i) Make any public statement or statement reasonably likely to be made public (including by requiring the Company to make public disclosure) regarding the Company or its Affiliates, officers, directors, employees, businesses or strategies, unless approved in writing in advance by the Company (except to the extent, if any, required to be disclosed by the Barington Group in a Schedule 13D filing or in response to a court order or a judicial or regulatory demand).
(j) 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;
(bii) make, or acquisition of any interest in any way participate in, directly material asset or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities business of the Company or any Subsidiaryof its subsidiaries;
(ciii) initiatemerger, propose acquisition, share exchange or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of other business combination involving the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposalits subsidiaries; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;or
(div) formrecapitalization, join restructuring, liquidation, dissolution or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act other extraordinary transaction with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary of its subsidiaries or material portion of its or their businesses.
(k) Request in writing any waiver, consent under or any amendment of, any provision of their respective stockholders this Agreement.
(l) File or make commence any public statement Legal Proceeding to contest the validity of this Section 3 or to seek a release from any restriction contained in this Section 3.
(m) Enter into any discussion, negotiation, agreement or understanding with any Third Party with respect to the foregoing or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving of the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence foregoing. For the managementavoidance of doubt, the Board or policies provisions of this Section 3 shall not limit in any respect the actions of any director of the Company in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to the Company and its stockholders. For purposes of this Agreement, the “Standstill Period” means the period from the date hereof until 90 days prior to the date of the annual meeting of stockholders of the Company to be held in 2015 (the “2015 Annual Meeting”) or, if earlier, 10 days prior to any Subsidiaryadvance notice deadline for making director nominations at the 2015 Annual Meeting; provided, that the Standstill Period will be extended as set forth below:
(n) If the Company recommends (or otherwise seekhas notified Barington in writing of its commitment to recommend) that its stockholders vote for the re-election of the New Nominees at the 2015 Annual Meeting (regardless of whether the New Nominees agree to stand for re-election) and supports the New Nominees for election in no less rigorously and favorably a manner than it supports all of its other nominees, alone then the Standstill Period will continue until 90 days prior to the date of the annual meeting of stockholders of the Company to be held in 2016 (the “2016 Annual Meeting”) or, if earlier, 10 days prior to any advance notice deadline for making director nominations at the 2016 Annual Meeting.
(o) Notwithstanding anything in this Agreement to the contrary, until the end of the Standstill Period, the Barington Group will cause all Voting Securities with respect to which it has any voting authority, whether owned of record or beneficially owned, as of the record date for any annual or special meeting of stockholders or in concert connection with othersany solicitation of stockholder action by written consent (each a “Stockholders Meeting”) within the Standstill Period, in each case that are entitled to vote at any such Stockholders Meeting, to be present for quorum purposes and to be voted at all such Stockholders Meetings or at any adjournments or postponements thereof (i) for all directors nominated by the Board for election or appointment to or representation on, or to at such Stockholders Meeting and (ii) for all other routine matters such as the Company advisory vote on executive compensation and ratification of auditors. In the event that the Company does not nominate or propose the nomination of any candidate toNew Nominees for re-election at the 2015 Annual Meeting, the Board or the removal of Standstill Period ends and any member of the BoardBarington Group nominates, or propose publicly announces an expectation that it will nominate, candidates for election to the Board at the 2015 Annual Meeting, the New Nominees shall resign from the Board simultaneously with any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry such nomination or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingannouncement.
Appears in 1 contract
Standstill. Executive agrees Each of CD&R Fund and the Purchaser Parties agree that for a period during the Standstill Period, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Company Board, acting by resolution approved by a majority of all members of CD&R Fund and the BoardPurchaser Parties shall not, directly or indirectly, and shall cause their respective Affiliates not to (either individually, or in concert with any manner other Person, or as a “group” (as such term is used in Section 13(d)(3) of the obligations pursuant to this Section 13 being referred to as, the “Standstill”Exchange Act)):
(a1) acquire, offer or propose seek to acquire, solicit an offer to sell or agree to acquireacquire or make a proposal to acquire (except in nonpublic communications that would not reasonably be expected to require the Company, the Purchaser Parties, any of their respective Affiliates or any other Person to make any public announcement or other disclosure with respect thereto, including pursuant to Section 13 of the Exchange Act), by purchase or otherwise, of record or through Beneficial Ownership, directly or indirectly, alone any Equity Securities, loans or in concert with others, by purchase, tender offer, exchange offer, through debt securities of the acquisition Company or control any of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities its Subsidiaries or direct or indirect rightsrights to acquire any Equity Securities, warrants loans or options to acquiredebt securities of the Company or any of its Subsidiaries, any securities or securities rights convertible into or exchangeable forfor any such Equity Securities, loans or debt securities or any options or other derivative securities or contracts or instruments in any way related to the price of Equity Securities, loans or debt securities of the Company or any of its Subsidiaries or substantially all of the assets or property of the Company and its Subsidiaries (but in any case excluding any issuance by the Company or any Subsidiary thereof of any of the foregoing (A) to any Purchaser Designee as compensation for their membership on the Company Board or (B) as a result of a dividend payment on, or the conversion of, the Preferred Stock pursuant to the provisions of the Certificate of Designations); provided, that notwithstanding the foregoing or any other limitation imposed by this Agreement, CD&R Fund, Purchaser Parties and their respective Affiliates shall be permitted to acquire shares of Common Stock in the open market or otherwise so long as, after giving effect to the acquisition thereof, CD&R Fund, Purchaser Parties and their respective Affiliates, in the aggregate, would not Beneficially Own or have economic exposure to greater than 19.9% of the then outstanding Common Stock assuming the conversion into Common Stock of all shares of Preferred Stock held by the CD&R Fund, the Purchaser Parties and their respective Affiliates; provided further that, for the avoidance of doubt, the foregoing limitation shall in no manner limit the Company’s obligation to pay dividends or any other premiums (including redemption premiums) on the Preferred Stock in accordance with the provisions set forth in the Certificate of Designation (and, for purposes of the foregoing calculation, the CD&R Fund, Purchaser Parties and their respective Affiliates’ Beneficial Ownership and economic exposure shall not be impacted by any such premiums or dividends to the extent in excess of 19.9%);
(2) other than solely to effectuate the nomination and election of the Purchaser Designees pursuant to Section 4.8, make or in any way participate or engage in any “solicitation” of “proxies” or consents (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 voting securities of the Company or any Subsidiaryof its Subsidiaries, or call or seek to call a meeting of the Company’s stockholders (or action by written consent in lieu thereof) or initiate or make any stockholder proposal for action by the Company’s stockholders, other than with respect to the acquisition in designation of any Purchaser Designees pursuant to this Agreement or the aggregate solicitation of less than one-half “proxies” or consents with respect to the election of one percent Persons nominated to be directors by the Company Board, seek election to or to place a representative on the Company Board or seek the removal of any director from the outstanding voting securities of the CompanyCompany Board;
(b3) makemake any announcement with respect to, or offer, propose or indicate an interest in (in each case with or without conditions) (except in nonpublic communications that would not reasonably be expected to require the Company, the Purchaser Parties, any of their respective Affiliates or any other Person to make any public announcement or other disclosure with respect thereto, including pursuant to Section 13 of the Exchange Act), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the assets 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 securities or assets, or enter into any negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person (other than advisors of the CD&R Fund, the Purchaser Parties and their respective Affiliates, in such advisors’ capacity as such) regarding any of the foregoing;
(4) effect or seek to effect (including by entering into negotiations, agreements or understandings with any third person), offer or propose (except in nonpublic communications that would not reasonably be expected to require the Company, the Purchaser Parties, any of their respective Affiliates or any other Person to make any public announcement or other disclosure with respect thereto, including pursuant to Section 13 of the Exchange Act) to effect, or cause or participate in, or in any way assist or facilitate (including through the provision of financing) any other Person to effect or seek, offer or propose to effect or participate inin a merger, directly consolidation, division, acquisition or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting exchange of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Equity Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join thereof or any way participate in a “group” within the meaning of Section 13(d)(3) material portion of the Exchange Act with respect to any voting securities assets thereof, change of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or the any of its Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g5) otherwise act, alone or in concert with others, to seek to propose to control or influence, in any manner, management or the Company Board, the Company or any Subsidiary of its Subsidiaries;
(6) make any public proposal or public statement of inquiry or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(7) other than in respect of purchases of Common Stock not prohibited by clause (1), take any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a transaction or any of their respective stockholders the events described in this Section 4.10;
(8) enter into any negotiations, arrangements or make understandings with any public statement third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Purchaser Parties) with respect to any mergerof the foregoing, business combinationincluding forming, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization joining or other transaction involving in any way participating in a “group” (as such term is used in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or its Subsidiaries or otherwise in connection with any of the foregoing;
(9) request the Company or any Subsidiaryof its representatives, directly or indirectly, to amend or waive any provision of this Section 4.10, provided that this clause shall not prohibit the Purchaser Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 4.10, 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 any Person;
(h10) seekcontest the validity of this Section 4.10 or make, alone initiate, take or participate in concert with others, any demand or action (legal or otherwise) to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive alter or terminate any provision of this Standstill Section 4.10;
(11) deposit any Equity Securities owned thereby (whether Beneficial Ownership or seek permission record ownership) in any voting trust or subject any such Equity Securities to any arrangement or make agreement (other than customary brokerage accounts, margin accounts, prime brokerage accounts and the like) with respect to the voting of any public announcement such Equity Securities, other than any such voting trust, arrangement or agreement solely among CD&R Fund, the Purchaser Parties and their respective Affiliates and granting proxies in solicitations approved by the Board;
(12) engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, share appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any provision security (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that derives any significant part of its value from a decline in the market price or value of any of the Standstillsecurities or loans of the Company or its Subsidiaries; or
(j13) announce an intention advise, assist, knowingly encourage or direct any Person to do, or to enter into advise, assist, encourage or direct any arrangement or understanding with others (whether written or oral) other person to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted foregoing; provided, however, that nothing in this Section 4.10 will limit (1) the Purchaser Parties’ ability to submit on a confidential basis any communication or prohibited under clauses proposal to the Company Board that would not reasonably be expected to require the Company, the Purchaser Parties, any of their respective Affiliates or any other Person to make any public announcement or other disclosure with respect thereto, including pursuant to Section 13 of the Exchange Act, (a2) through the Purchaser Parties’ ability to vote (j) subject to the terms of this Standstill, Agreement and other Transaction Documents) or take any action that might result in Transfer (subject to Section 4.7 and the Company having to make a public announcement regarding any other Transaction Documents) their shares of the matters referred to in clauses (a) through (j) of this StandstillPreferred Stock or Common Stock, or otherwise intentionally takeexercise rights under their shares of Preferred Stock pursuant to the Certificate of Designations, (3) the preemptive rights of any Purchaser Party pursuant to Section 4.9, or solicit(4) the ability of any Purchaser Designee to act in his or her capacity as a member of the Company Board, including, but not limited to, his or cause her ability to vote or encourage others to take, any action inconsistent with the foregoingotherwise exercise his or her fiduciary duties.
Appears in 1 contract
Standstill. Executive 2.1 Separate and apart from the duties and responsibilities of the Shareholder Director (as defined below), the Shareholder agrees that, until the date that for a period of 18 is eighteen (18) months from the Closing, except in the case of Section 2.1(d) below, which shall continue until the date of Executive’s termination of employment for any reasonthat is thirty-six (36) months from the Closing, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willwhich times the standstill period shall end (the “Standstill Period”), (unless specifically invited requested in writing by the BoardCompany, acting by through a resolution approved by of a majority of all members Company’s directors), it shall not, and shall cause each of its controlled Affiliates (other than any Non-Private Equity Business (as defined below) of the BoardShareholder or its Affiliates) (such controlled Affiliates, directly or indirectly, in any manner (together with the obligations pursuant to this Section 13 being referred to asShareholder, the “StandstillPrincipal Shareholder Affiliates”):
) not to: (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange ActSEC) of proxies or consents to vote, whether subject to or exempt from the proxy rules, vote or seek to advise, encourage advise or influence in any manner whatsoever any person or entity other stockholder of the Company with respect to the voting of any voting securities of the Company 2 (b) seek, alone or in concert with others, representation on the Board (other than to ensure compliance with the terms of this Agreement) or otherwise seek, or knowingly encourage any Subsidiary;
person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or, except through the Shareholder Director or Observer, acting in such Shareholder Director’s or Observer’s capacity as such, and except through the exercise of its voting rights as a shareholder of the Company, seek or knowingly encourage any third Person with respect to the election or removal of any directors; (c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Exchange Act Act) with respect to any voting securities of the Company Common Stock or the Subsidiaries;
Common Stock Equivalents; (ed) acquire, offer or propose to acquire acquire, or agree to acquire, directly or indirectly, alone or in concert with others, 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, through swap or hedging transactions any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) 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 the Shares or otherwise, (i) any securities of the assets, tangible and intangible, of the Company or any Subsidiary rights decoupled from the underlying securities of Company that would result in the Principal Shareholder Affiliates owning, controlling or otherwise having any beneficial or other ownership interest in more than 19.9% of Common Stock outstanding at such time; provided, that, nothing herein will require Common Stock to be sold to the extent that the Principal Shareholder Affiliates, collectively, exceed the ownership limit under this clause (iic) direct as the result of a share repurchase or indirect rightssimilar Company action that reduces the number of outstanding shares of Common Stock; (e) except through the Shareholder Director or Observer, warrants acting in such Shareholder Director’s or options to acquire any assets Observer’s capacity as such, and except through the exercise of its voting rights as a shareholder of the Company or any Subsidiary;
(f) arrangeCompany, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any mergercontrol, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to controladvise, change or influence the management, the Board board of directors, governing instruments, policies or policies affairs of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
Company; (if) make any publicly disclosed proposalpublic disclosure, or take any action that could require the Company to make any public statementdisclosure, public inquiry or public disclosure with respect to any of the matters set forth in this Section 2.1; (g) disclose any intention, plan, plan or arrangement inconsistent with the foregoing; or (h) have any discussions or enter into any arrangements (whether written or oral) inconsistent with, or advise, assist or encourage any other Persons in connection with any of the foregoing.
2.1 The restrictions set forth in Section 2.1 shall not apply if any of the following occurs: (a) in the event that the Company enters into a definitive agreement for a merger, consolidation or other business combination transaction as a result of which the stockholders of the Company would own (including, but not limited to, beneficial ownership) voting securities of the resulting corporation having 50% or less of the total voting power of the outstanding voting securities; (b) in the event that a tender offer or exchange offer for at least 50.1% of the outstanding voting securities of the Company is commenced by a third Person; or 3 (c) the Company solicits from one or more Persons or enters into discussions with one or more Persons regarding, a proposal with respect to a merger of, or a business combination transaction involving, the Company, in each case without similarly soliciting a proposal from the Shareholder, or the Company makes a public announcement that it is seeking to sell itself and/or explore strategic alternatives and, in such event, such announcement is made with the foregoingapproval of its Board of Directors.
2.2 Nothing in this Section 2 shall restrict the Shareholder from making any proposal directly to the Board of Directors on a confidential basis or from voting its Common Stock or Common Stock Equivalents in any manner the Shareholder and its Principal Shareholder Affiliates determine in their sole discretion.
2.3 If the terms of this Section 2 conflict in any way with the provisions of the Confidentiality Agreement, then the provisions of this Section 2 shall control. The Confidentiality Agreement shall terminate upon the occurrence of the Effective Time, but shall continue in full force and effect until the Effective Time, and thereafter, the confidentiality obligations set forth in Section 5 below shall continue in full force and effect in accordance with the terms of this Agreement.
2.4 For purposes of this Agreement, “Non-Private Equity Business” shall mean any business or make investment of the Shareholder and its Affiliates distinct from the business of primarily making investments as conducted the Shareholder and its Affiliates; provided, that such business or disclose investment shall not be deemed to be distinct from such private equity business if and at such time that (a) any request confidential information with respect to the Company or proposal its Subsidiaries is made available to amend, waive investment professionals of such business or terminate investment who are not involved in the private equity business and who are involved in such other business or investment or (b) the Shareholder or any of its Affiliates instructs any such business or investment to take any action that would violate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of Agreement had such action been taken directly by the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingShareholder.
Appears in 1 contract
Samples: Principal Shareholder Agreement
Standstill. Executive agrees that for a For the period of 18 (the “Standstill Period”) commencing on the date hereof and ending on the earlier of: (i) the date which is six months from the date of Executive’s termination this Agreement; and (ii) the date a person not affiliated with Purchaser or its associates (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) acquires, announces an intention to acquire or proposes to acquire in an transaction described in clauses (a) through (j) below not approved by the Board of employment for any reasonDirectors of the Company; Purchaser will not, neither Executive nor any of his and will cause its associates (as such term is defined under the Exchange Act) and its affiliates or persons or entities acting at his direction or with his assistance willwhom it controls (as such term is defined under the Exchange Act) not to, unless specifically invited expressly requested in writing writing, in advance, by the Board, acting by resolution approved by Company or pursuant to a majority of all members of written agreement with the BoardCompany, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):whatsoever:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company[Intentionally Left Blank];
(b) make, propose to make, or participate in any merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, or other similar transaction involving the Company;
(c) solicit, make, effect, initiate, cause or, in any way participate inin (other than by granting a proxy to management representatives), directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from any holders of any securities of the proxy rules, Company;
(d) call or seek to advisehave called any meeting of the stockholders of the Company or any subsidiary thereof or seek or act, encourage alone or in concert with others, to advise or influence in any manner whatsoever whatsoever, any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryCompany;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(de) form, join or participate in, or otherwise encourage the formation of, any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to the record or beneficial ownership of any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryCompany;
(f) arrange, facilitate, or in any way participate, directly or indirectly, in any financing for the purchase by any person in a transaction not approved by the Board of Directors of the Company of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiaryof its subsidiaries;
(g) otherwise (1) act, alone directly, or in concert with othersindirectly, to seek to propose control, advise, direct or influence the management, Board of Directors (including any individual members thereof), stockholders, policies or affairs of the Company or any subsidiary thereof; provided, however, that nothing contained herein shall prevent Purchaser from freely communicating privately with management and the directors Purchaser’s observations, recommendations and preferences with respect to the Company, its operations and policies; or (2) disclose an intent, purpose, plan or proposal with respect to the Company or any Subsidiary subsidiary thereof inconsistent with the provisions of this letter agreement, including, without limitation, any intent, purpose or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving plan that requires the Company to waive the benefit of or amend any Subsidiaryprovision of this letter agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that which might result in require the Company having to make a public announcement regarding any matter of the matters types set forth in clauses (a) through (g) of this Section 6.1;
(i) agree or offer to take, or encourage (other than by granting a proxy to management representatives) or propose (publicly or privately) the taking of, or announce an intention to take, any action referred to in clauses (a) through (g), inclusive, of this Section 6.1;
(j) assist, induce or encourage (other than by granting a proxy to management representatives), or enter into discussions, negotiations, arrangements or understandings with, any person to take any action of the type referred to in clauses (a) through (i), inclusive, of this Standstill, Section 6.1. The expiration of the Standstill Period shall not terminate or otherwise intentionally take, or solicit, or cause or encourage others to take, affect any action inconsistent with of the foregoingother provisions of this letter agreement.
Appears in 1 contract
Samples: Purchase Agreement (Corning Natural Gas Holding Corp)
Standstill. Executive Senvest agrees that, prior to the date that for a period of 18 months is three (3) years from the effective date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner this Agreement (the obligations pursuant to this Section 13 being referred to as“Standstill Period”), the “Standstill”):it shall not:
(a) acquiremake, offer effect, initiate, cause or propose participate in, at any time without the prior written consent of the Company, (i) any acquisition of Beneficial Ownership of the Common Stock resulting in an increase in its aggregate Beneficial Ownership of the Common Stock to acquirea number of shares representing 20% or more of the outstanding shares of the Common Stock, solicit an offer to sell (ii) any acquisition of any assets of the Company or agree to acquireany assets of any subsidiary or other affiliate of the Company, directly or indirectly, alone or in concert with others, by purchase, (iii) any tender offer, exchange offer, through merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the acquisition Company or control any subsidiary or other affiliate of another person or entitythe Company, or otherwise, involving any direct or indirect beneficial interest in any voting securities or direct assets of the Company or indirect rightsany securities or assets of any subsidiary or other affiliate of the Company, warrants or options to acquireother than (x) any tender of shares of the Common Stock in an issuer tender offer under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or securities convertible into a third party tender offer under the Exchange Act that is recommended by a majority of the current directors of the Company (the “Current Directors”), directors appointed or exchangeable forelected upon the recommendation of the current directors (“Subsequent Directors”) and directors appointed or elected upon the recommendation of the Current Directors and Subsequent Directors (collectively, the “Incumbent Board”) or (y) any voting merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction not proposed or initiated, directly or indirectly, by Senvest that is recommended by a majority of the Incumbent Board, (iv) any “solicitation” of “proxies” or stockholder consents (as such terms are defined under Regulation 14A of the Exchange Act) with respect to any securities of the Company or any Subsidiary, other than of its subsidiaries or (v) any stockholder proposals or recommendations or nominations for election to the acquisition Board of Directors that would require disclosure in the aggregate Company’s proxy statement prepared in connection with its annual meetings of less than one-half of one percent of stockholders; provided that (subject to Section 2 hereof) Senvest may vote the outstanding voting securities of Senvest Shares on proposals or nominations that Senvest did not submit for inclusion in the Company’s proxy statement;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company or the Subsidiariesany of its subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(gc) otherwise act, whether alone or in concert with others, to seek to propose to the Company, any subsidiary of the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving to or with the Company or any Subsidiaryof its subsidiaries or otherwise seek or propose to influence or control the Company’s management or policies;
(hd) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in require the Company having to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(c)” of this sentence;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)” or “(d)” of this sentence;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that the Company or any of the Company’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 4. Notwithstanding anything to the contrary in Section 4 of this Agreement, Senvest may (i) tender Senvest Shares in any tender offer made to the holders of the Company’s common stock; (ii) vote any Senvest Shares other than the Excess Shares in their exclusive discretion on any matter; and (iii) communicate on a confidential basis its intention to so tender or vote the Senvest Shares and its reasons for doing so to its investors (including but not limited to any managed accounts, the securities of which all are Beneficially Owned by Senvest) as of the date of such communication who are contractually obligated to treat such information confidentially; provided that in the case of clauses (i), (ii) and (iii) Senvest has not directly or indirectly taken any other action prohibited under in this Section 4. Additionally, nothing in this Agreement will prevent Senvest from communicating with the Chief Executive Officer of the Company to make a proposal for or to negotiate with Senvest in respect of a tender or exchange offer, merger or other business combination, any other of the transactions described in Section 4(a)(i) involving the Company and Senvest, or any amendment or waiver of any provision of this Agreement, so long as such communication is made confidentially and does not require public disclosure. Following the end of the Standstill Period, nothing in this Agreement shall, directly or indirectly, prevent or otherwise limit Senvest from taking any actions referred to in clauses (a) through (ja)-(h) of this StandstillSection 4 or related thereto, and in each case without notice to or consultation with the Company. The expiration of the Standstill Period will not terminate or otherwise intentionally take, or solicit, or cause or encourage others to take, affect any action inconsistent with of the foregoingother provisions of this Agreement.
Appears in 1 contract
Samples: Shareholder Agreement (Senomyx Inc)
Standstill. Executive agrees that If this Agreement is terminated, then, for a period of 18 months from two years after the date of Executive’s termination such termination, IP and each of employment for any reasonits successors or assigns will not, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and will cause its Affiliates not to:
(ai) acquire, offer or propose or otherwise seek to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersby merger, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, beneficial ownership of any assets or in excess of 1% of any class of securities of UCC or its Affiliates or any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire (through purchase, exchange, conversion or securities convertible into otherwise) any assets or exchangeable for, in excess of 1% of any voting class of securities of the Company UCC or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits Affiliates;
(bii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" (as such term is used terms are defined in Rule 14a-1 of Regulation 14A promulgated by the proxy rules SEC as of the Securities and Exchange Commission promulgated date hereof, disregarding clause (iv) of Rule 14a-1(1)(2), but including any solicitation exempted pursuant to Section 14 Rule 14a-2(b)
(1) to vote (including by the execution of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesactions by written consent), or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of of, any voting securities of the Company or any SubsidiaryUCC;
(ciii) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwisein any way participate in a call for, any meeting of shareholders of UCC (or cause or encourage or attempt take any action with respect to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersshareholders acting by written consent);
(div) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company UCC; or
(v) otherwise act to control or influence, or seek to control or influence, UCC or the Subsidiaries;
(e) acquiremanagement, offer to acquire Board of Directors, policies or agree to acquireaffairs of UCC, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwiseincluding without limitation, (iA) making any of the assets, tangible and intangible, of the Company offer or any Subsidiary or (ii) direct or indirect rights, warrants or options proposal to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company UCC or any Subsidiary;
(g) otherwise actof its Affiliates or soliciting or proposing to effect or negotiate any form of business combination, alone restructuring, recapitalization or in concert with othersother extraordinary transaction involving UCC, to seek to propose to the Company or any Subsidiary its Affiliates or any of their respective stockholders securities or make any public statement with respect to any mergerassets, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(hB) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or seeking board representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member directors or a change in the composition or size of the BoardBoard of Directors of UCC, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(iC) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose making any request to amend or proposal to amend, waive or terminate any provision of this Standstill Section 8.09, (D) disclosing any intent, purpose, plan or seek permission to or make any public announcement proposal with respect to matters covered by this Section 8.09 or UCC, its Affiliates or the boards of directors, management, policies or affairs or securities or assets of UCC or its Affiliates that is inconsistent with this Section 8.09, including an intent, purpose, plan or proposal that is conditioned on, or would require, waiver, amendment, nullification or invalidation of any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this StandstillSection 8.09, or take any action that might result in the Company having could require UCC or any of its Affiliates to make a any public announcement regarding disclosure relating to any such intent, purpose, plan, proposal or condition, or (E) assisting, advising or encouraging any person with respect to, or seeking to do, any of the matters referred foregoing; provided, however, that this Section 8.09 shall not apply if UCC does not pay any portion of the Termination Fee when due or if IP terminates this Agreement as a result of a willful breach of this Agreement by UCC; provided, further, that, if this Section 8.09 is effective against IP (and each of its successors and their respective Affiliates) during any such two-year period after the date of any such termination, and either (x) UCC shall have entered into an agreement with respect to any transaction that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of either the voting securities of UCC then outstanding or the assets of UCC and the UCC Subsidiaries, taken as a whole or (y) any Person or "group" (as defined in clauses (a) through (jSection 13(d)(3) of the Exchange Act) (other than UCC or any of its Affiliates (excluding, for this Standstillpurpose, UCC's management acting independently of UCC)) shall have commenced any tender or exchange offer that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of the voting securities of UCC then outstanding which offer is recommended by UCC's Board of Directors to its shareholders, then at the time of the public announcement of such agreement or of the commencement of such offer, as applicable, this Section 8.09 shall terminate and have no further force or effect and there shall be no rights, liabilities or obligations under this Section 8.09 on the part of IP, UCC, MergerSub, or otherwise intentionally takeany of their respective officers, directors, shareholders, agents or solicit, or cause or encourage others to take, any action inconsistent with the foregoingAffiliates.
Appears in 1 contract
Samples: Merger Agreement (Union Camp Corp)
Standstill. Executive agrees that for a period Each of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardShareholder Group agrees that, directly during the Standstill Period, he or indirectlyit will not, in any manner (the obligations pursuant to this Section 13 being referred to asand he or it will cause each of such person's Affiliates or agents or other persons acting on his or its behalf not to, the “Standstill”):and will cause his or its respective Associates not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control business combination or any other manner, beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiarysecurities of any Affiliate of the Company, other if, after completion of such acquisition or proposed acquisition, such party would beneficially own more than the acquisition in the aggregate of less than one-half of one percent 14.99% of the outstanding voting securities shares of the CompanyCommon Stock;
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “"partnership, limited partnership, syndicate or other group” " within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or acquired in the future subject to the limitations set forth in Section 5(a) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, 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 Subsidiariesmeaning 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 2011 Annual Meeting or the 2012 Annual Meeting as set forth in this Agreement;
(e) acquireseek, offer in any capacity, to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company's shareholders (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 purchasethis Agreement;
(f) effect or seek to effect, exchange in any capacity (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 in (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any tender offer or indirect rightsexchange offer, warrants merger, acquisition or options to acquire any assets of other business combination involving the Company or any Subsidiary;
(f) arrangeof its subsidiaries, or in (iii) any way participaterecapitalization, directly restructuring, liquidation, dissolution or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of other extraordinary transaction with respect to the Company or any Subsidiaryof its subsidiaries;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 4(d) or this Section 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of publicly disparage any member of the BoardBoard or management of the Company; provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit the Shareholder Group from (i) making public statements (including statements contemplated by Rule 14a-1 (1) (2) (iv) under the Exchange Act), (ii) engaging in discussion with other stockholders or (iii) soliciting, or encouraging or participating in the solicitation of, proxies or consents with respect to voting securities of the Company (so long as such discussions are in compliance with Section 5(c) hereof) in each case with respect to any transaction that has been publicly announced by the Company involving (1) the recapitalization of the Company, (2) an acquisition, disposition or sale of assets or a business by the Company where the consideration to be received or paid in such transaction requires approval by the holders of the Common Stock or (3) a change of control of the Company.
Appears in 1 contract
Standstill. Executive agrees that for For a period of 18 months five (5) years from the date Closing Date (as such term is defined in Section 2(a)(i) of Executive’s termination of employment for any reasonthe Stock Purchase Agreement), neither Executive nor LDC shall not, and shall not permit any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardits Affiliates to, directly or indirectly, in any manner (i) without the obligations pursuant to this Section 13 being referred to as, prior written consent of the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersCompany, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, agree to acquire or securities convertible into or exchangeable for, offer to acquire beneficial ownership of any voting securities of the Company or direct or indirect rights or options to acquire such beneficial ownership (including, without limitation, any Subsidiary, other than the voting trust certificates representing such securities) if such acquisition would result in the aggregate beneficial ownership by LDC and all Affiliates of less than one-half LDC of one voting securities having voting power equal to or in excess of fifteen percent (15%) of the outstanding then aggregate voting securities power of the Company;
, (bii) enter, propose to enter into, solicit or support any merger or business combination or change of control or other similar transaction involving the Company or any of its subsidiaries, or purchase, acquire, propose to purchase or acquire or solicit or support the purchase or acquisition of any portion of the business or assets of the Company or any of its subsidiaries other than in the ordinary course of business, (iii) initiate or propose any matter for submission to a vote of the shareholders of the Company or make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is terms are used in the proxy rules of promulgated by the Securities and Exchange Commission promulgated pursuant to Section 14 of under the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise or influence any person with respect to the voting of, the Common Stock or any other voting securities of the Company or request or take any action to obtain any list of shareholders of the Company for such purposes, (iv) form, join or in any way participate in any group (other than a group composed solely of LDC and its Affiliates) formed for the purpose of acquiring, holding, voting or disposing of or taking any other action with respect to the Common Stock or any other voting securities of the Company that would be required under Section 13(d) of the Exchange Act to file a Schedule 13D with respect to such voting securities, (v) deposit any shares of Common Stock or any other voting securities of the Company in a voting trust or enter into any voting agreement or arrangement with respect thereto, (vi) seek representation on the Board (other than as contemplated by Section 7(b) of the Stock Purchase Agreement), the removal of any directors from the Board or a change in the size or composition of the Board, (vii) make any request to amend or waive any provision of this Section 3.2, which request would require public disclosure under applicable law, rule or regulation, (viii) disclose any intent, purpose, plan, arrangement or proposal inconsistent with the foregoing (including any such intent, purpose, plan, arrangement or proposal that is conditioned on or would require the waiver, amendment, nullification or invalidation of any of the foregoing) or take any action that would require public disclosure of any such intent, purpose, plan, arrangement or proposal, (ix) take any action challenging the validity or enforceability of the foregoing, (x) assist, advise, encourage or influence in any manner whatsoever negotiate with any person with respect to, or entity seek to do, any of the foregoing or (xi) take, or solicit, propose to or agree with any other person to take, any similar actions designed to influence the management or control of the Company. Nothing in this Section 3.2 shall (i) prohibit or restrict LDC or its Affiliates from responding to any inquiries from any stockholders of the Company as to LDC’s or any such Affiliate’s intention with respect to the voting of shares of Common Stock or any other voting securities of the Company beneficially owned by LDC or any Subsidiary;
(c) initiate, propose or “solicit” (such Affiliate so long as such term response is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate consistent with the Company’s terms of this Agreement, (ii) prohibit the purchase or its Subsidiaries’ stockholders other acquisition of beneficial ownership of Common Stock or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any other voting securities of the Company in compliance with Section 3.2(i) or (iii) restrict the Subsidiaries;
(eright of any director on the Board designated by LDC as contemplated by Section 7(b) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, Stock Purchase Agreement to vote on any matter as such designee believes appropriate in light of his duties as a director of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets the manner in which such designee may participate in his capacity as a director of the Company in deliberations or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase discussions at meetings of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination as a member of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingcommittee thereof.
Appears in 1 contract
Standstill. Executive agrees that From and after the date of this Agreement and for a period of 18 months from five years, none of the date of Executive’s termination of employment for any reason, neither Executive Shareholders nor any of his affiliates or persons or entities acting at his direction or with his assistance willtheir Related Persons, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):shall:
(a) acquire, offer solicit proxies or propose to acquire, solicit an offer to sell be or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control become a member of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” a group which solicits proxies (as such used herein, the term is used "proxy" shall have the meaning provided in the proxy rules of Regulation 14A promulgated by the Securities and Exchange Commission promulgated pursuant to Section 14 of under the Exchange Act) for the purpose of proxies or consents to vote, whether subject to or exempt (i) removing from the proxy rulesoffice, or seek nominating or voting for a candidate to adviserun in opposition to, encourage or influence in any manner whatsoever any person who is serving as a director of UNIT at the date of this Agreement or entity with respect any person who may hereafter be elected to the voting board of any voting securities directors of UNIT as a result of the Company nomination or recommendation by at least a majority of those persons serving as directors of UNIT at the date of this Agreement, or (ii) vote against or otherwise opposing any Subsidiary;matter which has been proposed or recommended by the board of directors of UNIT which is then comprised of persons at least a majority of which are persons serving as directors of UNIT at the date of this Agreement and any persons who may hereafter be elected to the board of directors of UNIT based upon the nomination or recommendation by at least a majority of those persons serving as directors of UNIT at the date of this Agreement; or
(cb) initiatepermit any entity under his, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s her or its Subsidiaries’ stockholders control (including but not limited to subsidiaries and employee pension, profit sharing or others in connection with the solicitation of proxies or consents or matters presented to the Company’s other trusts under his, her or its Subsidiaries’ stockholders;
(dinvestment management control) form, join to acquire or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, (i) any of the assets, tangible and intangible, of the Company UNIT Common Stock or any Subsidiary option to purchase UNIT Common Stock; or
(c) acquire or (ii) direct or indirect rights, warrants or options offer to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participateagree to acquire, directly or indirectly, by purchase or otherwise shares of UNIT Common Stock or any option to purchase UNIT Common Stock by any Person; or
(d) finance or arrange the financing or participate in the financing of the acquisition of UNIT Common Stock by any financing Person; or
(e) join or permit any Related Person of its to join a partnership, limited partnership, syndicate, or other group for the purchase purpose of any voting securities acquiring or securities convertible holding of UNIT Common Stock within the meaning of Section 13(d) of the Exchange Act; or
(f) initiate, propose or exchangeable into or exercisable otherwise solicit shareholders for any voting securities matter at any time, or assets induce or attempt to induce any other Person to initiate any stockholder proposal or a tender offer for shares of the Company UNIT Common Stock or any Subsidiary;change of control of UNIT, or for the purpose of convening a stockholders' meeting of UNIT; or
(g) otherwise actother than in connection with the Contemplated Transaction, alone acquire or in concert with otherspermit any entity under his, her or its control (including but not limited to seek subsidiaries and employee pension, profit sharing or other trusts under his, her or its investment management control) to propose acquire, by purchase or otherwise, more than 5% of any class of equity securities of any entity which, prior to the Company or any Subsidiary or any time such entity acquires more than 5% of their respective stockholders or make any public statement with respect to any mergersuch class, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving is the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiarybeneficial owner of, or otherwise seek, alone or in concert with others, election or appointment intends to or representation on, or to nominate or propose the nomination acquire more than 5% of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillUNIT Common Stock; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Unit Corp)
Standstill. Executive agrees The PL Capital Parties each agree that for a period of 18 months from during the date of Executive’s termination of employment for any reasonStandstill Period (as hereinafter defined), neither Executive nor any of his the PL Capital Parties and their affiliates or persons associates (as defined in Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and they will not assist or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardencourage others to), directly or indirectly, in any manner (manner, without prior written approval of the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Board of Directors of Alliance Bancorp:
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, acquire directly or indirectly, alone or in concert with others, by purchase, tender offergift, tender, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) or any direct or indirect interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor (collectively, an “Acquisition”), any voting securities of Alliance Bancorp, such that as a result of such of such Acquisition, the Company or any Subsidiary, other than the acquisition PL Capital Parties would maintain beneficial ownership in the aggregate excess of less than one-half of one percent 9.99% of the outstanding voting securities shares of the CompanyAlliance Bancorp common stock;
(bii) make, engage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” or consents to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryAlliance Bancorp;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(diii) form, join join, encourage, influence, advise or in any way participate in a “group” within the 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 Alliance Bancorp or otherwise in any manner agree, attempt, seek or propose to deposit any securities of Alliance Bancorp in any voting trust or similar arrangement, or subject any securities of Alliance Bancorp to any arrangement or agreement with respect to the Company or voting thereof, except as expressly set forth in this Agreement (for the Subsidiariesbenefit 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);
(eiv) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender, exchange or otherwise, (ia) any of the assets, tangible and intangible, direct or indirect, of the Company or any Subsidiary Alliance Bancorp or (iib) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryAlliance Bancorp;
(fv) 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 voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any SubsidiaryAlliance Bancorp;
(gvi) otherwise act, alone or in concert with others, propose or to seek to propose offer to the Company or any Subsidiary Alliance Bancorp or any of their respective stockholders or make its shareholders any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving to or with Alliance Bancorp or the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, Bank or otherwise seek, alone or in concert with others, election to control or appointment change the management, Board of Directors or policies of Alliance Bancorp or the Bank, propose or seek any amendment, waiver or modification of the articles of incorporation or bylaws of Alliance Bancorp, nominate any person as a director of Alliance Bancorp who is not nominated by the then incumbent directors (provided that if there is a vacancy on the Alliance Bancorp Board of Directors the PL Capital Parties may submit suggestions on a confidential basis to the Alliance Bancorp Board of Directors or representation on, or the Nominating and Governance Committee of the Alliance Bancorp Board of Directors for nominees to nominate or propose the Board of Directors pursuant to the nomination of any candidate to, policy adopted by the Board or the removal of any member of the BoardDirectors), or propose any matter to be voted upon by the stockholders shareholders of the Company or any SubsidiaryAlliance Bancorp;
(ivii) make any publicly disclosed proposaldirectly or indirectly, public statementsell, public inquiry transfer or public disclosure otherwise dispose of any intentioninterest in the shares of Alliance Bancorp common stock beneficially owned by the PL Capital Parties to any person that would reasonably be understood to be the beneficial owner of 5% or more of the outstanding shares of Alliance Bancorp common stock;
(viii) except in connection with the enforcement of this Agreement, planinitiate or participate, by encouragement or otherwise, in any litigation against Alliance Bancorp or the Bank or their respective directors or officers, or arrangement (whether written or oral) inconsistent with the foregoingin any derivative litigation on behalf of Alliance Bancorp, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillexcept for testimony which may be required by law; or
(jix) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do do, any of the actions restricted or prohibited under clauses (ai) through (jviii) of this StandstillParagraph 2, publicly announce or take disclose any action that might result in the Company having request to make a public announcement regarding be excused from any of the matters referred to in clauses (a) through (j) foregoing obligations of this StandstillParagraph 2 or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. At any Alliance Bancorp annual meeting of shareholders during the Standstill Period, the PL Capital Parties agree: (1) to vote all shares of Alliance Bancorp they or any of them beneficially own in favor of the nominees for election or reelection as director of Alliance Bancorp selected by the Board of Directors of Alliance Bancorp and agree otherwise to support such director candidates, and (2) with respect to any other proposal submitted by any Alliance Bancorp shareholder to a vote of the Alliance Bancorp shareholders, to vote all of the Alliance Bancorp shares they beneficially own in accordance with the recommendation of the Alliance Bancorp Board of Directors with respect to any such shareholder proposal. Notwithstanding anything in this Agreement to the contrary, nothing herein will be construed to limit or affect: (1) any action or inaction by Mx. Xxxxxx or the Substitute in his capacity as a member of Alliance 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 PL Capital Parties to engage in discussions relating to the topics listed in Paragraph 2 of this Agreement directly with the President and Chief Executive Officer of Alliance Bancorp, or otherwise intentionally takeupon invitation, with other members of management or solicit, or cause or encourage others to take, any action inconsistent with the foregoingboard of directors of Alliance Bancorp.
Appears in 1 contract
Samples: Standstill Agreement (Alliance Bancorp, Inc. Of Pennsylvania)
Standstill. Executive Servier agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive it nor any Affiliate or other of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Boardits representatives, acting by resolution approved by a majority alone or as part of all members of the Boardany group, shall directly or indirectlyindirectly until [***], in any manner (without the obligations pursuant to this Section 13 being referred to asprior written approval of Pharmacyclics' Board of Directors:
13.13.1 acquire or agree, the “Standstill”):
(a) acquireoffer, offer seek or propose to acquire, solicit an offer or cause to sell or agree to acquirebe acquired, directly or indirectlyownership (including, alone or but not limited to, beneficial ownership as defined in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of Rule 13d 3 under the Securities and Exchange Commission promulgated pursuant to Section 14 Act of the Exchange Act1934) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assetsassets or businesses of Pharmacyclics or of any securities of Pharmacyclics, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants rights or options to acquire any assets of the Company or any Subsidiarysuch ownership (including from a third party);
(f) arrange13.13.2 make, or in any way participate, directly or indirectly, in any financing for "solicitation" of "proxies" (as such terms are used in the purchase proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of Pharmacyclics;
13.13.3 form, join or securities convertible or exchangeable into or exercisable for in any way participate in, a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to any voting securities or assets of the Company or any SubsidiaryPharmacyclics;
(g) 13.13.4 otherwise act, whether alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to Pharmacyclics any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving the Company to or any Subsidiary;
(h) seekwith Pharmacyclics or otherwise act, whether alone or in concert with others, to seek to control, change or influence the management, the Board of Directors or policies of the Company or any SubsidiaryPharmacyclics, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose any person as a director of Pharmacyclics who is not nominated by the nomination of any candidate to, the Board or the removal of any member of the Boardthen incumbent directors, or propose any matter to be voted upon by the stockholders of Pharmacyclics; *** Certain information in this document has been omitted and filed separately with the Company Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
13.13.5 solicit, negotiate with, or provide any information to, any person with respect to a merger, exchange offer or liquidation of Pharmacyclics or any Subsidiaryother acquisition of Pharmacyclics, any acquisition or voting securities of or all or any portion of the assets of Pharmacyclics or any other similar transaction;
(i) make 13.13.6 announce an intention to, or enter into any publicly disclosed proposaldiscussion, public statementnegotiations, public inquiry arrangements or public disclosure understandings with any third party with respect to, any of the foregoing; or
13.13.7 disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make advise, assist or disclose encourage any other persons in connection with any of the foregoing. In addition, Servier hereby agrees that during the term of this Agreement, it shall not request Pharmacyclics, directly or proposal indirectly, to amend, amend or waive or terminate any provision of this Standstill Section 13.13, (including this sentence.) If at any time during the term of this Agreement Servier or seek permission to any of its representatives are approached by any third party concerning Servier's participation in a transaction involving the assets or make any public announcement with respect to any provision business of Pharmacyclics or securities issued by Pharmacyclics, Servier will promptly inform Pharmacyclics of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any nature of such transaction and the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingparties thereto.
Appears in 1 contract
Standstill. Executive agrees that for a period of Until 18 months from after the date Closing Date (the “Standstill Term”), except (i) with the prior written consent of Executivethe Company or (ii) by way of stock dividends or other distributions made to the Company’s termination of employment for any reasonstockholders generally, neither Executive nor the Purchaser will not, and will not encourage, direct, assist or cause any of his affiliates its Affiliates, employees, representatives or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardagents to, directly or indirectly, in any manner (the obligations pursuant subject to this Section 13 being referred to as, the “Standstill”):6.2:
(a) acquireacquire or agree, offer offer, seek or propose to acquireacquire ownership (including, solicit an offer to sell or agree to acquirebut not limited to, directly or indirectly, alone or beneficial ownership as defined in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Rule 13d-3 under the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities stock of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets stock of the Company if, as a result of such acquisition, the Purchaser in the aggregate would own more than 19.9% of the issued and outstanding voting stock of the Company at the time of such acquisition;
(b) cause to be acquired ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any voting stock of the Company or securities convertible or exchangeable into or exercisable for any Subsidiaryvoting stock of the Company if, as a result of such acquisition, the Person acquiring ownership together with the Purchaser and its Affiliates in the aggregate, would own more than 19.9% of the issued and outstanding voting stock of the Company at the time of such acquisition;
(gc) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are defined under Regulation 14A of the Exchange Act) to vote or seek to advise or influence in any manner whatsoever any person with respect to voting stock of the Company;
(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting stock of the Company (other than a group consisting solely of Purchaser and its Affiliates with respect to not more than 19.9% of the issued and outstanding voting stock of the Company);
(e) arrange, or in any way participate in, any financing for the purchase of any voting stock of the Company or securities convertible or exchangeable into or exercisable for any voting stock of the Company (other than purchases by the Purchaser and its Affiliates with respect to not more than 19.9% of the issued and outstanding voting stock of the Company);
(f) otherwise act, whether alone or in concert with others, to seek to propose under Rule 14a-8 of the Exchange Act to the Company or any Subsidiary or any of their respective its stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other similar transaction involving to or with the Company or induce or attempt to induce any Subsidiaryother person to initiate any stockholder proposal;
(g) call or seek to have called any meeting of the stockholders of the Company or, unless requested by the Company in writing, execute any written consent in lieu of a meeting of holders of voting stock of the Company;
(h) seek, alone seek election or in concert with others, seek to control, change or influence the management, place a representative on the Board or policies of Directors of the Company (the “Board of Directors”) or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or seek the removal of any member of the Board, or propose any matter to be voted upon by the stockholders Board of the Company or any Subsidiary;Directors; or
(i) make enter into any publicly disclosed proposaldiscussions, public statementnegotiations, public inquiry arrangements or public disclosure of understandings with or assist any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement third party with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Standstill. Executive agrees that for (a) For a period of 18 months from XXX following the date of Executive’s termination of employment for any reasonthis Agreement, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe Vendor shall not, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardPurchaser, directly or indirectly, which consent may be given on such terms and conditions as the Purchaser may determine: (i) in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, agree to acquire or make any proposal or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone any unissued or in concert with othersoutstanding securities of the Corporation or propose or offer to enter into, by directly or indirectly, any amalgamation, plan of arrangement, merger or business combination involving the Corporation and its Affiliates or to purchase, tender offerdirectly or indirectly, exchange offerall or substantially all of the assets of the Corporation and its subsidiaries, through taken as a whole; (ii) directly or indirectly “solicit” or participate or join with any person in the acquisition or control “solicitation” of another person or entityany “proxies” (as such terms are defined in the Securities Act (Ontario)) to vote, or otherwise, seek to influence any direct or indirect beneficial interest in any person with respect to the voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forof, any voting securities of the Company Corporation; (iii) otherwise act alone or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone jointly or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose control or to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board board of directors or policies of the Company Corporation; (iv) solicit, facilitate or encourage any transaction to acquire assets of the Corporation and/or one or more of its subsidiaries representing 20% or more of the consolidated assets or contributing 20% or more of the consolidated revenue of the Corporation and its subsidiaries, taken as a whole, or acquire 20% or more of the Common Shares (an “Acquisition Transaction”) other than a transaction by the Purchaser or any Subsidiary, of its Affiliates or otherwise seek, alone any person acting jointly or in concert with othersthe Purchaser; (v) enter into, election continue or appointment to participate in any discussions or representation onnegotiations regarding an Acquisition Transaction, or furnish to nominate or propose the nomination of any candidate to, the Board or the removal of other person any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement information with respect to any provision the business of the Standstill; or
Corporation or its properties, operations, prospects or conditions (jfinancial or otherwise) announce in connection with an intention to doAcquisition Transaction or otherwise cooperate in any way with, or to enter into assist or participate in, facilitate or encourage, any arrangement effort or understanding attempt of any other person (other than the Purchaser or any of its Affiliates or any person acting jointly or in concert with others (whether written or oralthe Purchaser) to do, do or to finance, intentionally advise, enable, assist or encourage others seek to do any of the actions restricted foregoing; or prohibited under clauses (avi) through (j) of this Standstilladvise, assist, encourage or take act jointly or in concert with any action that might result other person in the Company having to make a public announcement regarding connection with any of the matters referred to foregoing, other than the Purchaser or any of its Affiliates or any person acting jointly or in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent concert with the foregoingPurchaser.
(b) For greater certainty, and notwithstanding anything else in Section 6(a), Section 6(a) shall not apply to any investment fund or product managed by GCIC US Ltd., the manager of the Vendor, (the “Manager”) or any of its affiliates, other than the Vendor and XXX (whose relationship with the Purchaser is governed by a Securities Purchase Agreement of even date herewith (the “XXX Agreement”) and the terms of which agreement shall prevail in the event of any inconsistency or conflict between this Agreement and the XXX Agreement), unless such fund or product is managed by XXX, the lead portfolio manager of the Vendor.
Appears in 1 contract
Samples: Securities Purchase Agreement (Brookfield Renewable Energy Partners L.P.)
Standstill. Executive The Shareholder hereby agrees that that, for a period of 18 months one year from the date of Executive’s termination of employment for any reasonhereof, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written consent of the BoardCompany, the Shareholder will not, and the Shareholder will use its reasonable best efforts to cause each of its Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquire, publicly announce an intention to acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire (except, in any case, by way of stock dividends or other distributions or offerings made available to holders of any Common Stock generally), directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person Person, by joining a partnership, limited partnership, syndicate or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
"group" (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to Act) or otherwise, any voting equity securities of the Company Company; provided, however, that the Shareholder and/or any of its Affiliates may acquire additional shares of Common Stock in open market or privately-negotiated transactions as long as the SubsidiariesShareholder and its Affiliates, collectively, shall not, as a result of such purchase or purchases, beneficially own in excess of 25% of the outstanding shares of Common Stock;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangemake, or in any way participate, directly or indirectly, in any financing "solicitation" (as such term is used in the proxy rules of the Commission as in effect on the date hereof) of proxies or consents (whether or not relating to the election or removal of directors), seek to advise, encourage or influence any Person with respect to the voting of any Voting Securities, initiate, propose or otherwise "solicit" (as such term is used in the proxy rules of the Commission as in effect on the date hereof) stockholders of the Company for the approval of stockholder proposals made pursuant to Rule 14a-8 of the Exchange Act, or induce or attempt to induce any other Person to initiate any such stockholder proposal;
(iii) seek, propose, or make any public statement (whether written or oral) with respect to, any merger, consolidation, business combination, tender or exchange offer, sale or purchase of any voting assets, sale or purchase of securities (except as and to the extent specifically permitted hereby), dissolution, liquidation, restructuring, recapitalization or securities convertible similar transactions of or exchangeable into or exercisable for any voting securities or assets of involving the Company or any Subsidiaryof its Affiliates or solicit or encourage any other Person to make any such public statement or proposal;
(giv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than groups consisting solely of directors of the Company, other parties hereto and their respective Affiliates;
(v) deposit any Voting Securities in any voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities;
(vi) execute any written consent with respect to the Company or its Voting Securities;
(vii) otherwise act, alone or in concert with others, to control or seek to propose control or influence or seek to influence the Company management, Board of Directors or any Subsidiary or any policies of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any SubsidiaryCompany;
(hviii) seek, alone or in concert with others, to control, change or influence the management, representation on the Board or policies of Directors of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or seek the removal of any member of the Board, or propose any matter to be voted upon by the stockholders Board of the Company or any SubsidiaryDirectors;
(iix) make any publicly disclosed proposal or enter into any discussion regarding any of the foregoing;
(x) publicly make any proposal, public statementstatement or inquiry, public inquiry or public disclosure of publicly disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or publicly make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Agreement or seek permission to the Certificate of Incorporation or make any public announcement with respect to any provision By-laws of the StandstillCompany; or
(jxi) announce an intention to do, or to enter into any arrangement arrangements, understandings or understanding with others agreements (whether written or oral) to dowith, or to finance, intentionally advise, enablefinance or assist, assist or encourage others to do any other Person in connection with any of the actions restricted or prohibited under clauses (a) through (j) of this Standstillforegoing, or take make any action investment in or enter into any arrangement with, any other Person that might result engages, or offers or proposes to engage, in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Standstill. Executive The Investor agrees that for a period during the Standstill Period, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardInvestor will not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and will cause its Affiliates not to:
(a) acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a public proposal to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in securities of the Company, any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable forfor any such securities, any options or other derivative securities or contracts or instruments in any way related to the price of shares of Company Common Stock or any assets or property of the Company or any Subsidiary of the Company that results in the Investor having beneficial ownership of more than the Maximum Percentage of the shares of the Company Common Stock outstanding at such time (assuming the conversion of the Series B Preferred Stock) (but in any case excluding (i) 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 Investor Director as compensation for their membership on the Board, and (ii) the acquisition of the shares of Company Common Stock issuable upon conversion of the Series B Preferred Stock);
(b) 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 voting securities of the Company or call or seek to call a meeting of the Company’s shareholders or initiate any Subsidiarystockholder proposal for action by the Company’s shareholders, or other than with respect to the acquisition in Investor Director, seek election to or to place a representative on the aggregate Board or seek the removal of less than one-half any director from the Board;
(c) make any public announcement with respect to, or seek or propose any merger or business combination, tender or exchange offer, recapitalization, reorganization or purchase of one percent a material portion of the outstanding voting assets, properties or securities of the Company;
(b) make, or in any way participate inother extraordinary transaction involving the Company, directly or indirectlyenter into any discussions, alone negotiations, arrangements, understandings or in concert agreements with others, any “solicitation” (as such term is used in the proxy rules other Person regarding any of the Securities and Exchange Commission promulgated pursuant to Section 14 foregoing; provided, however, that this clause (c) shall not preclude the tender by the Investor or its Affiliates of any securities of the Exchange Act) of proxies Company into any tender or consents to vote, whether subject to exchange offer or exempt from the proxy rules, vote by the Investor or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting its Affiliates of any voting securities of the Company or with respect to any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used Fundamental Change in accordance with the proxy rules recommendation of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersBoard;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to control or seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change advise or influence knowingly influence, in any manner, management or the managementboard of directors, or the Board or policies of the Company or any Subsidiaryof its Subsidiaries (other than the Investor Director acting in his or her capacity as a member of the Board or voting at a meeting of the Company’s shareholders);
(e) acquire, offer or otherwise seekseek to acquire, alone by purchase or in concert otherwise, any debt securities of the Company;
(f) make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with othersany of the foregoing;
(g) advise, election assist, knowingly encourage or appointment direct any Person to or representation ondo, or to nominate advise, assist, encourage or propose the nomination of direct any candidate toother Person to do, the Board or the removal of any member of the Board, foregoing
(h) take any action that would or propose would reasonably be expected to require the Company to make a public announcement regarding the possibility of a transaction or any matter to be voted upon by the stockholders of the Company or any Subsidiaryevents described in this Section 5.07;
(i) make enter into any publicly disclosed proposaldiscussions, public statementnegotiations, public inquiry communications, arrangements or public disclosure understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, the Investor Parties) with respect to any intention, plan, or arrangement (whether written or oral) inconsistent with of the foregoing, including, without limitation, forming, joining or make 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 Investor Parties) with respect to the Company or disclose any securities of the Company or otherwise in connection with any of the foregoing
(j) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.07; or
(k) contest the validity of this Section 5.07 or make, initiate, take or participate in any demand, action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Standstill Section 5.07; provided, however, that nothing in this Section 5.07 will limit (1) the Investor Parties’ ability to vote, Transfer (subject to Section 5.08), convert (in accordance with the limitations in the Statement With Respect to Shares) or seek permission otherwise exercise rights under its Company Common Stock or Series B Preferred Stock or (2) the ability of any Investor Director to vote or make otherwise exercise its fiduciary duties or otherwise act in its capacity as a member of the Board. Notwithstanding anything to the contrary in this Section 5.07, the Investor 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 Fundamental Change), so long as, in each case, such communications and submissions are not intended to, and would not reasonably be expected to, require any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in disclosure by the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstillsuch communications or submissions, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingas applicable.
Appears in 1 contract
Samples: Investment Agreement (Ii-Vi Inc)
Standstill. Executive agrees that If this Agreement is terminated, then, for a period of 18 months from two years after the date of Executive’s termination such termination, IP and each of employment for any reasonits successors or assigns will not, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and will cause its Affiliates not to:
(ai) acquire, offer or propose or otherwise seek to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersby merger, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, beneficial ownership of any assets or in excess of 1% of any class of securities of UCC or its Affiliates or any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants rights or options to acquireacquire (through purchase, exchange, conversion or securities convertible into otherwise) any assets or exchangeable for, in excess of 1% of any voting class of securities of the Company UCC or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyits Affiliates;
(bii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of "proxies" (as such term is used terms are defined in Rule 14a-1 of Regulation 14A promulgated by the proxy rules SEC as of the Securities and Exchange Commission promulgated date hereof, disregarding clause (iv) of Rule 14a-1(1)(2), but including any solicitation exempted pursuant to Section 14 Rule 14a-2(b)
(1) to vote (including by the execution of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesactions by written consent), or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of of, any voting securities of the Company or any SubsidiaryUCC;
(ciii) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwisein any way participate in a call for, any meeting of shareholders of UCC (or cause or encourage or attempt take any action with respect to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersshareholders acting by written consent);
(div) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company UCC; or
(v) otherwise act to control or influence, or seek to control or influence, UCC or the Subsidiaries;
(e) acquiremanagement, offer to acquire Board of Directors, policies or agree to acquireaffairs of UCC, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwiseincluding without limitation, (iA) making any of the assets, tangible and intangible, of the Company offer or any Subsidiary or (ii) direct or indirect rights, warrants or options proposal to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company UCC or any Subsidiary;
(g) otherwise actof its Affiliates or soliciting or proposing to effect or negotiate any form of business combination, alone restructuring, recapitalization or in concert with othersother extraordinary transaction involving UCC, to seek to propose to the Company or any Subsidiary its Affiliates or any of their respective stockholders securities or make any public statement with respect to any mergerassets, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(hB) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or seeking board representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member directors or a change in the composition or size of the BoardBoard of Directors of UCC, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(iC) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose making any request to amend or proposal to amend, waive or terminate any provision of this Standstill Section 8.9, (D) disclosing any intent, purpose, plan or seek permission to or make any public announcement proposal with respect to matters covered by this Section 8.9 or UCC, its Affiliates or the boards of directors, management, policies or affairs or securities or assets of UCC or its Affiliates that is inconsistent with this Section 8.9, including an intent, purpose, plan or proposal that is conditioned on, or would require, waiver, amendment, nullification or invalidation of any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this StandstillSection 8.9, or take any action that might result in the Company having could require UCC or any of its Affiliates to make a any public announcement regarding disclosure relating to any such intent, purpose, plan, proposal or condition, or (E) assisting, advising or encouraging any person with respect to, or seeking to do, any of the matters referred foregoing; provided, however, that this Section 8.9 shall not apply if UCC does not pay any portion of the Termination Fee when due or if IP terminates this Agreement as a result of a willful breach of this Agreement by UCC; provided, further, that, if this Section 8.9 is effective against IP (and each of its successors and their respective Affiliates) during any such two-year period after the date of any such termination, and either (x) UCC shall have entered into an agreement with respect to any transaction that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of either the voting securities of UCC then outstanding or the assets of UCC and the UCC Subsidiaries, taken as a whole or (y) any Person or "group" (as defined in clauses (a) through (jSection 13(d)(3) of the Exchange Act) (other than UCC or any of its Affiliates (excluding, for this Standstillpurpose, UCC's management acting independently of UCC)) shall have commenced any tender or exchange offer that constitutes an Acquisition Proposal (assuming for this purpose that this Agreement had been effective at such time) for at least a majority of the voting securities of UCC then outstanding which offer is recommended by UCC's Board of Directors to its shareholders, then at the time of the public announcement of such agreement or of the commencement of such offer, as applicable, this Section 8.9 shall terminate and have no further force or effect and there shall be no rights, liabilities or obligations under this Section 8.09 on the part of IP, UCC, MergerSub, or otherwise intentionally takeany of their respective officers, directors, shareholders, agents or solicit, or cause or encourage others to take, any action inconsistent with the foregoingAffiliates.
Appears in 1 contract
Standstill. Executive agrees (a) The Holder, on behalf of himself and his Affiliates, as a group, and the Members, as a group, irrevocably agree that for they will not acquire through purchase in a period of 18 months from private transaction or in the date of Executive’s termination of employment for public market, by transfer or assignment, by gift or in any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardother manner, directly or indirectlyindirectly (with or without consideration), in any manner shares of Purchaser Common Stock (each an “Acquisition”), to the obligations pursuant extent that after giving effect to this Section 13 being referred to asan Acquisition, the Holder or the Members (together with each of their respective Affiliates, and any other Persons acting as a group together with the Holder or the Members or any of their respective Affiliates (such Persons, “StandstillAttribution Parties”):)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).
(ab) acquireFor purposes of the foregoing sentence, offer the number of shares of Purchaser Common Stock beneficially owned by the Holder or propose to acquirethe Members, solicit an offer to sell their respective Affiliates and Attribution Parties shall include the number of shares of Purchaser Common Stock:
(i) issuable upon exercise or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control conversion of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into into, or exchangeable for, any voting securities of or representing the Company or any Subsidiaryrights to receive, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the CompanyPurchaser Common Stock;
(bii) makeowned directly or indirectly or attributable to, or rights to acquire by, any spouse, ex-spouse, child, step-child, parent or sibling of any such Person; and
(iii) owned by any Person that has an agreement, understanding or arrangement, oral or written, (other than those certain Voting Agreements entered into in any way participate inconnection with the Purchase Agreement) to vote their Purchaser Common Stock, directly including Purchaser Common Stock owned or indirectly, alone or in concert with controlled by others, as directed by any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;Person.
(c) initiate, propose or “solicit” (as such term is used Beneficial ownership shall be calculated in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate accordance with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(313(d) of the Exchange Act with respect and the rules and regulations promulgated thereunder. In addition, a determination as to any voting securities group status as contemplated above shall be determined in accordance with Section 13(d) of the Company or Exchange Act and the Subsidiaries;rules and regulations promulgated thereunder.
(ed) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any The “Beneficial Ownership Limitation” shall be 49% of the assetsnumber of shares of Purchaser Common Stock issued and outstanding at the time of any contemplated Acquisition. In determining the number of issued and outstanding shares of Purchaser Common Stock, tangible the Holder and intangible, the Members must obtain from the Purchaser the most recent calculation of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets issued and outstanding shares of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingPurchaser Common Stock.
Appears in 1 contract
Samples: Standstill Agreement (BurgerFi International, Inc.)
Standstill. Executive agrees that for a period of 18 months from (a) Without the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members prior written approval of the BoardCompany, none of the Stockholders shall, directly or indirectly, and the Stockholders shall cause their controlled Affiliates not to, directly or indirectly: (i) make, or in any manner way participate or engage in, any “solicitation” of “proxies” (as such terms are defined under Regulation 14A under the obligations pursuant Exchange Act) to vote, or advise or knowingly influence, or seek to advise or knowingly influence, any Person with respect to the voting of, any Voting Securities, including by forming, joining or in any way participating in a Group (other than a group among the Stockholders and their Affiliates); (ii) form, join or in any way participate in, or enter into any agreement, arrangement or understanding with, a Group with respect to Voting Securities (other than a group among the Stockholders and their Affiliates); (iii) commence any tender or exchange offer for any Voting Securities; (iv) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in or part of, or publicly support, announce, endorse or encourage or submit to the Company or its Board, any acquisition transaction, merger or other business combination relating to all or part of the Company or any of its subsidiaries, or that would result in the Stockholders (collectively) Beneficially Owning, in the aggregate, Voting Securities representing more than the Voting Securities Beneficially Owned by the Stockholders (collectively) as of the date of this Section 13 being referred Agreement, 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 or any recapitalization, restructuring, change in control or similar extraordinary transaction involving the Company or any of its subsidiaries; (v) call or seek to ascall a meeting of the stockholders of the Company or initiate, support or endorse any stockholder proposal for action by stockholders of the “Standstill”):
Company, including any action by written consent; (avi) acquire, offer or propose to acquire, solicit an offer to sell or agree or seek to acquire, directly or indirectly, alone or in concert with otherssolicit the acquisition of, by purchase, tender offer, or exchange offer, through the acquisition or of control of another person Person (including by way of merger or entityconsolidation), by joining a partnership, syndicate or other Group, through the use of a derivative instrument or voting agreement, or otherwise, Beneficial Ownership of any direct additional Voting Securities (other than (A) pursuant to any stock split or indirect beneficial interest stock dividend or similar corporate action affecting all security holders on a pro rata basis, (B) from other Stockholders or their Affiliates or (C) through open-market purchases, up to an amount such that the Stockholders Beneficially Own, in the aggregate, less than 6% of the Total Voting Power); (vii) deposit any Voting Securities in a voting trust or similar arrangement or subject any Voting Securities to any voting securities agreement, pooling agreement 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 Subsidiary, similar arrangement (other than such agreements or arrangements among the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
Stockholders and their Affiliates); (bviii) makeenter into any discussions, negotiations, arrangements or in understandings with any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act Person with respect to any voting securities of the Company or the Subsidiaries;
foregoing prohibited activities; (e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(gix) otherwise act, alone or in concert with others, to seek to propose to the Company control or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or knowingly influence the management, management or the Board or policies of the Company Company; (x) advise or any Subsidiaryknowingly assist, encourage or act as a financing source for or otherwise seekinvest in or enter into any discussions, alone negotiations, agreements or arrangements with, any other Person in concert connection with others, election or appointment to or representation on, or to nominate or propose the nomination any of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any (xi) publicly request or proposal to that the Company amend, waive or terminate otherwise consent to any action inconsistent with any provision of this Standstill Section 2(a); (xii) publicly disclose, directly or seek permission to through any representative, any intention, plan or make any public announcement arrangement inconsistent with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted foregoing; or prohibited under clauses (axiii) through (j) of this Standstill, or take any action that might result in which could require the Company having to make a public announcement regarding the possibility of any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Standstill. Executive Each Investor agrees that that, for the period commencing immediately following the payment of the Expense Reimbursement Amount pursuant to Section 3 (the “Releases Effectiveness Time”) and ending on the earliest of (i) the one year anniversary of the Agreement, or (ii) a period material breach by the Company of 18 months its obligations under this Agreement which is not cured within five (5) Business Days after written notice from any Investor (the date of Executive’s termination of employment for any reason“Standstill Period”), neither Executive it nor any of his affiliates or persons or entities acting at his direction or with his assistance its controlled Affiliates will, unless specifically invited in writing by the Board, acting by resolution approved by a majority and it will cause each of all members of the Boardits controlled Affiliates not to, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, acting alone or in concert with others, :
(i) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by purchase, tender offer, exchange offer, through the acquisition SEC under the Exchange Act or control otherwise) or any notice of another person nomination or entityother business for consideration, or otherwise, nominate any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options candidate for election to acquire, or securities convertible into or exchangeable for, any voting securities the Board (including by way of the Company or any SubsidiaryRule 14a-11 of Regulation 14A), other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Companyas expressly permitted by this Agreement;
(bii) make, or in any way participate engage in, directly or indirectly, alone or in concert with others, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is used defined in the proxy rules Instruction 3 of the Securities and Exchange Commission promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of proxies the Board, or consents recommend or request or induce or attempt to vote, whether subject induce any other person to or exempt from the proxy rulestake any such actions, or seek to advise, encourage or influence in any manner whatsoever any other person or entity with respect to the voting of the Common Stock (including any withholding from voting) or grant a proxy with respect to the voting of the Common Stock or other voting securities of to any person other than to the Company Board or any Subsidiarypersons appointed as proxies by the Board;
(ciii) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant seek to Rule 14a-8 or Rule 14a-4 under the Exchange Actcall, or otherwiseto request the call of, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with a special meeting of the Company’s stockholders, or its Subsidiaries’ stockholders or others in connection with the solicitation make a request for a list of proxies or consents or matters presented to the Company’s stockholders or its Subsidiaries’ stockholdersto inspect any books and records of the Company;
(div) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and their Affiliates;
(v) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vi) seek to place a Representative or other Affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(vii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person, in each case other than securities of the SubsidiariesCompany;
(eviii) other than at the direction of the Board, seek, propose or make any statement (other than to one or more members of the Board or management or its advisors or agents) with respect to, or solicit, or 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 structure or composition of the Board, change in the executive officers of the Company, 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 (it being understood that the foregoing shall not restrict the Investors from tendering Common Stock, receiving payment for Common Stock or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(ix) acquire, announce an intention to acquire, offer or propose to acquire acquire, or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, beneficial ownership of (iA) any interests in the Company’s indebtedness or (B) an aggregate amount of more than 9.99% of the assetsCompany’s outstanding Common Stock (which shall not include Common Stock issued in connection with a stock split, tangible and intangible, of stock dividend or similar corporate action initiated by the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any mergersecurities beneficially owned by any of the Investors or their Affiliates); provided, business combinationhowever, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or nothing herein shall prevent any SubsidiaryInvestor from confidentially seeking a waiver from this provision;
(hx) seek, alone or in concert with others, to control, change or influence short sell the management, the Board or policies of the Company or any SubsidiaryCompany’s capital stock, or otherwise seekpledge, alone hypothecate or put any liens against the Company’s capital stock, except that an Investor may partake in concert customary margin transactions with others, election or appointment to or representation ona broker regulated by FINRA;
(xi) disclose publicly, or privately in a manner that could reasonably be expected to nominate become public, any intention, plan or propose arrangement inconsistent with the nomination foregoing;
(xii) take any action challenging the validity or enforceability of any candidate toprovisions of this Section 4; or
(xiii) enter into any agreement, the Board arrangement or the removal of understanding concerning any member of the Boardforegoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Except as expressly provided in Section 2, each of the Investors shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as it determines in its sole discretion, and (ii) disclose, publicly or propose otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted upon on by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or and the reasons therefor. This Section 4 shall not restrict the ability of the Investors and each of their Affiliates and other Representatives to privately communicate with the Company and its Representatives so long as such private communications would not be reasonably expected to trigger public disclosure of obligations for any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingparty.
Appears in 1 contract
Standstill. Executive agrees that for a period (a) Until the later of 18 months from (x) the three (3) year anniversary of the Closing, and (y) the date of Executive’s termination of employment on which the Majority Approved Holders are no longer entitled to designate any director for any reasonnomination pursuant to Section 1.1 (or have irrevocably waived their right), neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willeach Stockholder agrees that, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior approval of the Board, such Stockholder will not (in its own capacity or with or through any other Person), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”)::
(ai) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect “beneficial interest ownership” (as defined in Rule 13d-3 and Rule 00x-0 xxxxx xxx Xxxxxxxx Xxx) of any voting securities of the Company or its Subsidiaries, including shares of Common Stock, any securities convertible or exchangeable into shares of Common Stock 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 Subsidiaryof its Subsidiaries, excluding any shares of Common Stock or other than securities acquired (A) pursuant to a conversion or redemption of any shares of Series A Preferred Stock, bonus issue, dividend or distribution by the acquisition Company or otherwise acquired pursuant to the Transaction Documents (as defined in the aggregate of less than one-half of one percent of Investment Agreement), or (B) by a Person from the outstanding voting securities of the CompanyCompany in connection with such Person’s service as a director or Board observer;
(bii) except as otherwise expressly provided in this Agreement, make, or in any way knowingly encourage or participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission SEC promulgated pursuant to Section 14 of the Exchange Act), any securities of the Company or any of its Subsidiaries (whether or not any such vote relates to the election or removal of directors) of proxies or consents to vote, whether subject to or exempt from the federal proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity Person with respect to the voting of any voting securities of the Company or any Subsidiaryof its Subsidiaries or seek to propose to influence, advise, change or control the management, board of directors (or similar governing body), policies, affairs or strategy of the Company or any of its Subsidiaries by way of any public communication or other communications to their respective equityholders intended for such purpose;
(ciii) initiateexcept as otherwise expressly provided in this Agreement or as required in connection with the consummation of the transactions contemplated by the Investment Agreement, propose form, join or in any way participate or act in a “solicitgroup” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the Company or the any of its Subsidiaries;
(eiv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (iA) any of the assets, assets (tangible and or intangible, ) of the Company or any Subsidiary of its Subsidiaries, or (iiB) any direct or indirect rightsright, warrants warrant or options option to acquire any assets asset of the Company or any Subsidiaryof its Subsidiaries, except in the event any such asset as is then being offered for sale by the Company or any of its Subsidiaries;
(fv) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiaryof its Subsidiaries or any securities convertible into or exchangeable or exercisable for any securities or assets of the Company or any of its Subsidiaries, except for such securities or assets as are then being offered for sale by the Company or any of its Subsidiaries;
(gvi) otherwise act, alone or in concert with others, to make any public announcement or seek to propose (in each case, with or without any condition) to the Company or Company, any Subsidiary of its Subsidiaries or any of their respective stockholders or make equityholders any public statement with respect to any amalgamation, merger, business combination, consolidation, sale, tender offer, or exchange offer, restructuring, reorganizationrecapitalization, dissolution, liquidation, recapitalization liquidation of or other similar transaction involving to or with the Company or any Subsidiary;
such Subsidiary (hor in respect of any securities of the Company or any of its Subsidiaries) or otherwise seek, alone or in concert with others, to control, change or influence the management, the Board board of directors or policies of the Company or any Subsidiary, such Subsidiary or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose any Person as a director who is not nominated by the nomination of any candidate to, the Board or the removal of any member of the then-incumbent Board, or propose any matter to be voted upon by the stockholders of the Company or any SubsidiaryCompany;
(ivii) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Section 2.2(a); provided that this clause shall not prohibit a Stockholder from making a confidential request or seek permission proposal to the Chief Executive Officer or make Chair of the Board seeking any public announcement with respect to amendment or waiver of any provision of this Section 2.2, which the StandstillCompany 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; or
(jviii) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (ai) through - (jvii) of this StandstillSection 2.2(a), or otherwise intentionally takeannounce any intention to do, or solicitenter into any arrangement, understanding or cause discussion with any one or encourage others more other Persons to takedo, any action inconsistent with of the foregoingactions restricted or prohibited under clauses (i) - (vii) of this Section 2.2(a).
(b) Nothing in Section 2.2(a) will limit the Stockholders’ ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.3 below), convert (subject to Section (C) of Article VII of the Series A Certificate) or otherwise exercise the rights of its shares of Common Stock or shares of Series A Preferred Stock or the ability of the Stockholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise its legal duties or otherwise act in its capacity as a member of the Board.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members Each member of the BoardShareholder Group and Xxxxxxx agrees that, directly other than as may be required by applicable law, order or indirectlyregulation, in during the Standstill Period, he or it will not, and he or it will cause each of such person's respective Affiliates, Associates and agents and any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):other persons acting on his or its behalf not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other person, individual or entity, by purchase, tender offer, exchange offer, through agreement or business combination or any other manner, beneficial ownership of shares of the acquisition Common Stock or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting other securities of the Company or any Subsidiary, securities of any Affiliate of the Company (other than (i) the acquisition in of equity-based compensation pursuant to Section 12 hereof and the exercise of any options or conversion of any convertible securities comprising such equity-based compensation and (ii) the direct acquisition by Xxxxxxx of up to an aggregate of less than one10,000 shares of Common Stock in addition to the acquisition or exercise of any equity-half of one percent of the outstanding voting securities of the Companybased compensation he may receive pursuant to Section 12);
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group, Xxxxxxx or one or more of their respective Affiliates with respect to the Common Stock or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) engage in discussions with other shareholders of the SubsidiariesCompany, solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or 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 or tendering, any shares of Common Stock with respect to any matter, including without limitation, any Sale Transaction that is not approved by a majority of the Board, 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 any shareholder meeting;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company's shareholders (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;
(f) effect or seek to effect (including, without limitation, by purchaseentering into any discussions, exchange 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, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in (including by tendering or selling into) (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of the Common Stock or options to acquire any assets other securities of the Company or any Subsidiary;
(f) arrangesecurities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, a person or group would beneficially own, or have the right to acquire beneficial ownership of, more than 4.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act); provided that open market sales of securities through a broker by the Shareholder Group or Xxxxxxx which are not actually known by the Shareholder Group or Xxxxxxx, respectively, to result in any way participatetransferee acquiring beneficial ownership of more than 4.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 8, directly (iii) any tender offer or indirectlyexchange offer, in any financing for the purchase merger, change of any voting securities control, acquisition or securities convertible or exchangeable into or exercisable for any voting securities or assets of other business combination involving the Company or any Subsidiaryof its subsidiaries, or (iv) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (any of the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), unless such Sale Transaction is approved by a majority of the Board; provided that this paragraph shall not require members of the Shareholder Group or Xxxxxxx to vote in favor of a Sale Transaction that was approved by the Board;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 7 hereof or this Section 8, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group, Xxxxxxx or their respective stockholders Affiliates or make Associates) to obtain any public statement with respect to waiver, consent under, or amendment of, any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryprovision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of publicly disparage any member of the BoardBoard or management of the Company, provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose any matter to be voted upon communications that are required by the stockholders of the Company or any Subsidiaryan applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) make engage in any publicly disclosed proposalshort sale or any purchase, public statement, public inquiry sale or public disclosure grant of any intentionoption, planwarrant, convertible security, stock appreciation right, or arrangement other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company's securities;
(j) enter into any arrangements, understandings or agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(jk) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit Xxxxxx or Xxxxxxx 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.
Appears in 1 contract
Standstill. Executive Each member of the Shareholder Group agrees that for a period other than as may be required by applicable law, order or regulation, during the Standstill Period, he or it will not, and he or it will cause each of 18 months from the date of Executivesuch person’s termination of employment for any reasonAffiliates or agents or other persons acting on his or its behalf not to, neither Executive nor any of and will use commercially reasonable efforts to cause his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):its respective Associates not to:
(a) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, directly or indirectly, alone or in concert with othersany other individual or entity, by purchase, tender offer, exchange offer, through the acquisition agreement or control business combination or any other manner, beneficial ownership of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiarysecurities of any Affiliate of the Company, other if, after completion of such acquisition or proposed acquisition, such party would beneficially own, or have the right to acquire beneficial ownership of, more than the acquisition in the aggregate of less than one-half of one percent 14.99% of the outstanding voting securities Common Stock (based on the latest annual or quarterly report of the CompanyCompany filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act);
(b) makesubmit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect candidate for election to the voting of any voting securities of Board or oppose the Company or any Subsidiarydirectors nominated by the Board, other than as expressly permitted by this Agreement;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting securities agreement or pooling arrangement, other than solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 3(d) hereof or acquired in the future (subject to the limitations set forth in Section 6(a) hereof) or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(d) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to the 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 any shareholder meeting; provided that that the foregoing shall not be deemed to restrict such actions in connection with any Board-approved proposal for a merger or sale of the Company, change in control of the Company, recapitalization, acquisition or disposition by the Company or liquidation of the Company that is submitted for approval or adoption by the Subsidiariesstockholders of the Company;
(e) acquirecall, offer seek to acquire call, or agree to acquirerequest the calling of, directly a special meeting of the shareholders of the Company, or indirectlyseek to make, alone or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (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 purchasethis Agreement; provided that that the foregoing shall not be deemed to restrict such actions in connection with any Board-approved proposal for a merger or sale of the Company, exchange change in control of the Company, recapitalization, acquisition or disposition by the Company or liquidation of the Company that is submitted for approval or adoption by the stockholders of the Company;
(f) effect or seek to effect (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 in (i) any acquisition of the assets, tangible and intangible, any material assets or businesses of the Company or any Subsidiary or of its subsidiaries, (ii) direct any tender offer or indirect rightsexchange offer, warrants merger, acquisition or options to acquire any assets of other business combination involving the Company or any Subsidiary;
(f) arrangeof its subsidiaries, or in (iii) any way participaterecapitalization, directly restructuring, liquidation, dissolution or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of other extraordinary transaction with respect to the Company or any Subsidiaryof its subsidiaries; provided that that the foregoing shall not be deemed to restrict such actions in connection with any Board-approved proposal for a merger or sale of the Company, change in control of the Company, recapitalization, acquisition or disposition by the Company or liquidation of the Company that is submitted for approval or adoption by the stockholders of the Company;
(g) otherwise actpublicly disclose, alone or in concert cause or facilitate the public disclosure (including without limitation the filing of any document or report with others, to seek to propose to the Company SEC or any Subsidiary other governmental agency or any of their respective stockholders or make any public statement with respect disclosure to any mergerjournalist, business combinationmember of the media or securities analyst) of, consolidationany intent, salepurpose, tender offerplan or proposal to obtain any waiver, exchange offeror consent under, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryamendment of, any of the provisions of Section 5 hereof or this Section 6, or otherwise seek (in any manner that would require public disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of publicly disparage any member of the BoardBoard or management of the Company (including, without limitation, making any critical statements of the Company’s business, strategic direction or compensation practices), provided that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or propose to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure; provided that that the foregoing shall not be deemed to restrict such actions in connection with any matter to be voted upon Board-approved proposal for a merger or sale of the Company, change in control of the Company, recapitalization, acquisition or disposition by the Company or liquidation of the Company that is submitted for approval or adoption by the stockholders of the Company or any SubsidiaryCompany;
(i) make enter into any publicly disclosed proposalarrangements, public statement, public inquiry understandings or public disclosure of any intention, plan, or arrangement agreements (whether written or oral) inconsistent with with, or advise, finance, assist or encourage, any other person that engages, or offers or proposes to engage, in any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage induce or assist others to take, take any action inconsistent with any of the foregoing.
Appears in 1 contract
Samples: Standstill Agreement (Information Services Group Inc.)
Standstill. Executive agrees that for a period of 18 months (a) Except as otherwise set forth in or permitted by this Agreement, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period (as defined below), neither Executive nor each member of the Investor Group shall not, and shall cause its respective Affiliates, Associates, principals, directors, general partners, officers, employees and, to the extent acting on behalf or at the direction of any of his affiliates the foregoing, agents and other representatives (collectively, the “Related Persons” and each a “Related Person”) not to, directly or persons or entities acting at his direction or with his assistance willindirectly, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written approval of the Board:
(i) 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 solicitation of proxies (the obligations pursuant or written consents) with respect to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquireof the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote (or withhold the vote of) any securities convertible into of the Company;
(ii) grant any proxy, consent or exchangeable for, other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) 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 (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(iii) engage in any Subsidiary, other than course of conduct with the acquisition in the aggregate purpose of less than one-half of one percent causing stockholders of the outstanding voting securities 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;
(biv) makecall or seek to call, or in any way participate in, directly or indirectlyrequest the call of, alone or in concert with others, any meeting of stockholders, or action by consent resolutions, whether or not such a meeting or consent is permitted by the Restated Certificate of Incorporation of the Company, as amended (the “Charter”) or the Amended and Restated Bylaws of the Company (the “Bylaws”), including any “town hall meeting”;
(v) act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or seek, facilitate, encourage or take any other action with respect to the appointment, election or removal of any directors;
(vi) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, 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 such term is used broker or agent for compensation submit a proposal or offer for, or make any communication in the proxy rules opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Securities and Exchange Commission promulgated pursuant Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to Section 14 the Company or any of its subsidiaries, (C) any form of tender or exchange offer for the Common Shares, whether or not such transaction involves a change of control of the Company, or any securities or debt of any of the Company’s subsidiaries, (D) any financing transaction involving the Company or any of its subsidiaries, or (E) any liquidation or dissolution of the Company or any of its subsidiaries;
(vii) (A) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, through swap or hedging transactions or other Synthetic Position, or otherwise (the taking of any such action, an “Acquisition”), any ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of, or interest in, any securities or assets of proxies the Company such that after giving effect to any such Acquisition, the Investor Group or consents any of its Related Persons holds, directly or indirectly, in excess of a 13.1% interest in the then-outstanding securities of the Company, (B) purchase or otherwise acquire, or offer, seek, propose or agree to voteacquire, whether subject any interest in any indebtedness of the Company, or (C) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any assets or liabilities of the Company or any right or option to acquire any such asset or liabilities from any person, in each case in this clause (C) other than securities of the Company, and in each case in this paragraph (vii), other than by way of distributions or offerings made available to holders of Common Shares generally on a pro rata basis or pursuant to a Voting Exempt Matter (as defined in Section 5);
(viii) engage in any short sale, forward contract 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 exempt derives any significant part of its value from a decline in the proxy rules, market price or value of the securities of the Company;
(ix) seek to advise, encourage encourage, support or influence in any manner whatsoever any person or entity with respect to the voting of (or execution of a written consent in respect of), acquisition of or disposition of any voting securities of the Company or its subsidiaries;
(x) other than in open market sale transactions whereby the identity of the purchaser is not known, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any Subsidiary;rights decoupled from the underlying securities of the Company held by the Investor Group or any Related Person to any Third Party that, to the Investor Group’s knowledge (after due inquiry, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including, but not limited to, information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time or would increase the beneficial ownership interest of any Third Party who, collectively with its Affiliates and Associates, has a beneficial or other ownership interest of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers;
(cxi) initiatetake any action in support of or make any proposal or request that constitutes (or would constitute if taken), propose or “solicit” make any statement or have a discussion with any known stockholder of the Company concerning or with the effect of: (as such A) advising, controlling, changing or influencing the Board or management of the Company and its subsidiaries, including any plans or proposals to change the voting standard with respect to director elections, number or term is used of directors or to fill any vacancies on the Board, (B) any change in the proxy rules capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of the Securities and Company or its subsidiaries, (C) any other change in the Company’s or its subsidiaries’ management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Charter 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 CommissionAct;
(xii) pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, communicate with stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;others;
(dxiii) form, join or in any other way participate in a any partnership, limited partnership, syndicate or “group” (within the meaning of Section 13(d)(3) of the Exchange Act or otherwise) with respect to the Company or its securities (other than with members of the Investor Group);
(xiv) demand a copy of the Company’s list of stockholders or its other books and records or make any voting securities request under Section 220 of the General Corporation Law of the State of Delaware or other applicable legal provisions regarding inspection of books and records or other materials (including stocklist materials) of the Company or the Subsidiaries;any of its subsidiaries;
(exv) acquirecommence, offer to acquire encourage, join as a party, solicit or agree to acquiresupport any litigation, arbitration, derivative action in the name of the Company or any class action or other proceeding against or involving the Company or any of its current or former Company Related Persons (as defined below);
(xvi) make or publicly advance any request or submit any proposal, directly or indirectly, alone to amend, modify or waive the terms of this Section 4 other than through non-public communications with the Company, which the Company may accept or reject in concert with othersits sole and absolute discretion, by purchase, exchange or otherwise, (i) that would not trigger public disclosure obligations for any member of the assets, tangible and intangible, of Investor Group or its Related Persons or reasonably be expected to trigger public disclosure obligations for the Company or any Subsidiary Company Related Persons; or
(xvii) enter into any discussions, negotiations, agreements or (ii) direct understandings with any person or indirect rightsentity with respect to any action the Investor Group is prohibited from taking pursuant to this Section 4, warrants or options advise, assist, knowingly encourage or seek to acquire persuade any assets person or entity to take any action or make any statement with respect to any such 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 4 or elsewhere in this Agreement shall prohibit or restrict the Investor Group or its Related Persons from communicating privately with members of the Board or executive officers of the Company or regarding any Subsidiary;
(f) arrangematter, or in so long as such communications are not intended to and would not require any way participatepublic disclosure of such communications. The Investor Group shall not, and shall cause its Related Persons not to, seek to do, directly or indirectly, in through any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets director of the Company or other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Subsidiary;Related Person.
(gb) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision For purposes of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Agreement:
Appears in 1 contract
Samples: Cooperation Agreement
Standstill. Executive Each Investor Party agrees that for a period with the Company, severally and not jointly, that, until the applicable Standstill Expiration Date, without the prior written approval of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Boardsuch Investor Party shall not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and shall cause its Affiliates not to:
(a) acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a proposal to acquire, directly whether by private or indirectly, alone or in concert with others, by open market purchase, a block trade, a tender offer, or exchange offer, through the acquisition or control of another person or entitybeneficial ownership of, or otherwiseany economic interest in, any right to direct the voting or indirect beneficial interest in disposition of, or any voting other right with respect to any equity or equity-linked securities of the Company or direct or indirect rightsrights to acquire any equity securities or equity-linked of the Company, warrants or options to acquire, or any securities convertible into or exchangeable forfor any such equity securities of the Company, any options puts, calls, swaps or other derivative or convertible instruments, hedging contracts or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock; provided, however, that restriction set forth in this Section 5.05(a) shall apply to a transaction only to the extent that, after giving effect to such transaction, such Investor Party and its Affiliates would beneficially own, in the aggregate, greater than 19.9% of the then-outstanding Common Stock;
(b) (i) make or in any way knowingly encourage or participate in any “solicitation” of “proxies” or consents (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)), to vote, or knowingly seek to advise, encourage or influence any Person with respect to voting of, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company its Subsidiaries or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting such securities, (ii) request, call or seek to call (or, for the avoidance of doubt, publicly support another Person’s request or call for) a meeting of the Company’s stockholders or action by written consent (or the setting of a record date therefor), (iii) initiate or be the proponent of any stockholder proposal for action by the Company’s stockholders, (iv) seek, alone or in concert with others, election to or to place a representative on the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth herein or in the Certificate of Designations, (v) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any director from the Board (other than, in the case of the Investor Parties, the Investor Designee), or (vi) become a “participant” in any contested “solicitation” (as such terms are defined or used under the Exchange Act) for the election of directors with respect to the Company;
(c) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (in each case with or without conditions), 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 or assets of the Company or any SubsidiarySubsidiary of the Company, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing (it being understood that the foregoing shall not restrict any Investor Parties from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company);
(gd) otherwise act, alone or in concert with others, to seek to propose to control or influence, in any manner, the management, board of directors or business, of the Company or any Subsidiary of its Subsidiaries, including (i) controlling or changing the Board or management of the Company, including any plans or proposals to declassify the Board or to change the number or term of directors or to fill any vacancies on the Board (except as permitted herein or in the Certificate of Designations with respect to the Investor Designee), (ii) any material change in the capitalization, capital allocation policy or dividend policy of the Company, or (iii) 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;
(e) make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(f) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other Person to do, any of the foregoing;
(g) take any action that would require the Company to make a public announcement regarding the possibility of a transaction or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiaryevents described in this Section 5.05;
(h) seekenter into any agreements, alone arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Party) with respect to any of the foregoing, including forming, joining or in concert with others, to control, change or influence the management, the Board or policies any way participating in a “group” (as defined in Section 13(d)(3) of the Company or Exchange Act) with any Subsidiary, or otherwise seek, alone or third party in concert connection with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiaryforegoing;
(i) make request the Company or any publicly disclosed proposalof its Representatives, public statementdirectly or indirectly, public inquiry to amend or waive any provision of this Section 5.05; provided that this clause shall not prohibit any Investor Party from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.05, 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 any Person;
(j) contest the validity of this Section 5.05 or make, initiate, take or participate in any intentiondemand, plan, Action (legal or arrangement (whether written or oralotherwise) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill Section 5.05; provided, however, that nothing in this Section 5.05 will (1) limit any Investor Party’s ability to (A) vote, Transfer or seek permission Hedge (subject to this Agreement, including Section 5.06), (B) convert shares of Series A Preferred Stock into Common Stock, (C) exercise the Warrant, (D) acquire Preemptive Securities pursuant to Section 5.13, (E) privately make and submit to the Board any proposal that is intended by such Investor Party to be made and submitted on a non-publicly disclosed or make announced basis (and would not reasonably be expect to require public disclosure by any public announcement Person), (F) participate in rights offerings made by the Company to all holders of its Common Stock, receive any dividends or similar distributions with respect to any provision securities of the Standstill; or
Company held by such Investor Party, (jG) announce an intention tender shares of Common Stock or Series A Preferred Stock into any tender or exchange offer (subject to doSection 5.06), or (H) effect an adjustment to enter into the Conversion Rate pursuant to the Certificate of Designations or otherwise exercise rights under its Common Stock or Series A Preferred Stock that are not the subject of this Section 5.05, (2) limit the acquisition by any arrangement Investor Director of any equity securities of the Company pursuant to (x) the grant or understanding with others (whether written or oral) vesting of any equity compensation awards granted by the Company to doany Investor Director, or (y) the exercise of any stock options, restricted stock units, or similar awards relating to financeany equity securities granted by the Company to any Investor Director, intentionally advise, enable, assist or encourage others to do any (3) limit the ability of the actions restricted Investor Director to vote or prohibited under clauses otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board. For purposes of this Section 5.05, the “Standstill Expiration Date” shall mean the date upon which (ai) through any Person shall have entered into a binding definitive agreement that has been approved the Board to acquire more than 50% of the outstanding voting securities of the Company, (jii) any Person commences an exchange or tender offer which, if consummated, would result in such Person’s acquisition of beneficial ownership of more than 50% of the outstanding voting securities of the Company and the Board does not recommend against such transaction within ten (10) Business Days of the commencement thereof or (iii) any Person shall have entered into a binding definitive agreement that has been approved by the Board to undertake a transaction that would constitute a Change of Control (as defined in the Certificate of Designations) other than those contemplated in clause (i) and (ii) of this Standstillparagraph. Following the Closing and until the occurrence of the Fall-Away of Investor Board Rights, or take the Company shall invite the Investor to participate in any action process commenced by the Company that might result could reasonably be expected to lead to (x) any transaction of the type described in clause (i) and (ii) of the immediately preceding paragraph (to the extent that the Company has prior notice of such events) and/or (y) a Change of Control (as defined in the Certificate of Designations) (collectively, an “Acquisition Proposal”). The Company having shall provide in reasonable detail notice to Investor of any such process promptly following commencement thereof, and shall negotiate and cooperate in good faith with the Investor to enable the Investor’s participation in said process, subject to applicable Laws. The Company will promptly provide the Investor reasonable access to all facilities, personnel, management, documents and other information relating to the Company, and its business, products and technology to enable the Investor to conduct a due diligence investigation customary in a merger and acquisition context, which such access in either case will be no less extensive than that provided to any other party that has made or is contemplating making or has been invited by the Company to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingan Acquisition Proposal.
Appears in 1 contract
Standstill. Executive In consideration of the Evaluation Material being furnished to INTERESTED PARTY, INTERESTED PARTY hereby agrees that that, without the prior written consent of ORCHID, for a period of 18 months one year from the date of Executive’s termination of employment for any reasonhereof, neither Executive INTERESTED PARTY nor any of his affiliates its affiliates, either acting alone or persons as part of a group, will acquire or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, ownership (including beneficial ownership), or any direct rights or indirect options to acquire ownership (including beneficial interest in ownership), of any voting securities or direct assets of ORCHID or indirect rightsits subsidiaries, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company or any Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, make or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) solicitation of proxies or consents to vote, whether subject to or exempt from the proxy rules, vote or seek to advise, encourage advise or influence in any manner whatsoever matter any person or entity with respect to the voting of any securities of ORCHID or otherwise seek to influence or control, in any manner whatsoever, or enter into any arrangements with any third party with respect to any proposal to seek to influence or control, the management or policies of ORCHID, or make any public disclosure or take any other action that would require ORCHID to make a public disclosure with respect to any of the foregoing matters, except pursuant to a Transaction that is subject to a Definitive Agreement (the foregoing being collectively referred to as the “Standstill Restrictions”). The Standstill Restrictions shall terminate immediately upon the occurrence of any of the following: (i) any third party publicly commences (or publicly announces its intention to commence) any attempt to acquire beneficial ownership of 50% or more of the outstanding shares of voting securities of ORCHID or (ii) ORCHID executes a definitive agreement that, if consummated, would result in (A) the sale of all or substantially all of the assets of ORCHID, (B) the acquisition by a third party of 50% or more of ORCHID’s outstanding voting securities or (C) the consummation of a merger, acquisition, consolidation, reorganization, share exchange, business combination, similar transactions, or series of such related transactions involving ORCHID, unless immediately after such transaction or transactions, the voting securities of ORCHID outstanding immediately prior to the first such transaction (or, the voting securities issued in respect thereof) shall represent at least 50% of the voting securities of the Company surviving company. In addition, nothing herein, including, without limitation, the Standstill Restrictions, shall prevent INTERESTED PARTY or any Subsidiary;
(c) initiateof its affiliates from acquiring securities of another company that beneficially owns any securities of or equity interests in ORCHID, propose or “solicit” (as unless such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary acquisition was made for the approval purpose of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under violating the Exchange ActStandstill Restrictions. Further, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented notwithstanding anything to the Company’s or its Subsidiaries’ stockholders;
(d) formcontrary contained herein, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect Standstill Restrictions shall not apply to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any investment in any securities of ORCHID by or on behalf of any pension or employee benefit plan or trust, including without limitation (A) any direct or indirect interests in portfolio securities held by an investment company registered under the assetsInvestment Company Act of 1940, tangible and intangibleas amended, (B) interests in securities comprising part of the Company a mutual fund or broad based, publicly traded market basket or index of stocks approved for such a plan or trust in which such plan or trust invests, or (C) any stock portfolios not controlled by INTERESTED PARTY or any Subsidiary of its affiliates which invest in ORCHID among other companies; or (ii) direct or indirect rights, warrants or options to acquire any assets or securities of ORCHID, as debtor, that are acquired in a transaction subject to the approval of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for United States Bankruptcy Court pursuant to proceedings under the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingUnited States Bankruptcy Code.
Appears in 1 contract
Samples: Confidentiality Agreement (Laboratory Corp of America Holdings)
Standstill. Executive agrees that for a For the period of 18 (the “Standstill Period”) commencing on the date hereof and ending on the earlier of: (i) the date which is six months from the date of Executive’s termination this Agreement; and (ii) the date a person not affiliated with Purchaser or its associates (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) acquires, announces an intention to acquire or proposes to acquire in an transaction described in clauses (a) through (j) below not approved by the Board of employment for any reasonDirectors of the Company; Purchaser will not, neither Executive nor any of his and will cause its associates (as such term is defined under the Exchange Act) and its affiliates or persons or entities acting at his direction or with his assistance willwhom it controls (as such term is defined under the Exchange Act) not to, unless specifically invited expressly requested in writing writing, in advance, by the Board, acting by resolution approved by Company or pursuant to a majority of all members of written agreement with the BoardCompany, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):whatsoever:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company[Intentionally Left Blank];
(b) make, propose to make, or participate in any merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, or other similar transaction involving the Company;
(c) solicit, make, effect, initiate, cause or, in any way participate inin (other than by granting a proxy to management representatives), directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (as such term is used terms are defined in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from any holders of any securities of the proxy rules, Company;
(d) call or seek to advisehave called any meeting of the stockholders of the Company or any subsidiary thereof or seek or act, encourage alone or in concert with others, to advise or influence in any manner whatsoever whatsoever, any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryCompany;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(de) form, join or participate in, or otherwise encourage the formation of, any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to the record or beneficial ownership of any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any SubsidiaryCompany;
(f) arrange, facilitate, or in any way participate, directly or indirectly, in any financing for the purchase by any person in a transaction not approved by the Board of Directors of the Company of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiaryof its subsidiaries;
(g) otherwise actdisclose an intent, alone purpose, plan or in concert proposal with others, to seek to propose respect to the Company or any Subsidiary subsidiary thereof inconsistent with the provisions of this letter agreement, including, without limitation, any intent, purpose or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving plan that requires the Company to waive the benefit of or amend any Subsidiaryprovision of this letter agreement;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that which might result in require the Company having to make a public announcement regarding any matter of the matters types set forth in clauses (a) through (g) of this Section 6.1;
(i) agree or offer to take, or encourage (other than by granting a proxy to management representatives) or propose (publicly or privately) the taking of, or announce an intention to take, any action referred to in clauses (a) through (g), inclusive, of this Section 6.1;
(j) assist, induce or encourage (other than by granting a proxy to management representatives), or enter into discussions, negotiations, arrangements or understandings with, any person to take any action of the type referred to in clauses (a) through (i), inclusive, of this Standstill, Section 6.1. The expiration of the Standstill Period shall not terminate or otherwise intentionally take, or solicit, or cause or encourage others to take, affect any action inconsistent with of the foregoingother provisions of this letter agreement.
Appears in 1 contract
Samples: Purchase Agreement (Corning Natural Gas Holding Corp)
Standstill. Executive The Stockholder agrees that for a period of 18 months from and after the date of Executive’s termination this Agreement, until the later to occur of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing (1) the date on which the Registrable Common Stock Beneficially Owned by the Board, acting by resolution approved by a majority of all members Stockholder and its Affiliates ceases to constitute greater than 3% of the Boardissued and outstanding shares of Common Stock (after giving effect the conversion by the Stockholder and its Affiliates of any shares of Convertible Preferred Stock owned, directly or indirectly, in any manner by such Persons) and (2) the obligations pursuant to this Section 13 being referred to astenth anniversary of the Closing Date, it will not, and it will cause its Affiliates not to, without the “Standstill”):prior written consent of the Company:
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchasewhether through market purchases, tender offer, or exchange offer, through the acquisition or control of another person or entity, offer or otherwise, any direct record or indirect beneficial interest in any ownership of, or the right to vote, (i) more than 3% of the outstanding voting securities of the Company or direct or indirect rights, warrants or options rights to acquire, or securities convertible into or exchangeable for, any acquire more than 3% of the outstanding voting securities of the Company or any Subsidiarysubsidiary thereof, other or of any successor to or person in control of the Company, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling person, or (ii) more than the acquisition in the aggregate of less than one-half of one percent 14.9% of the outstanding voting securities capital stock of the Company or direct or indirect rights to acquire more than 14.9% of the outstanding common stock of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling person;
(b) make, make or in any way participate inparticipate, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rulesSEC), or seek to advise, encourage advise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any SubsidiaryCompany;
(c) initiateother than as contemplated by the Transaction Agreement, propose or “solicit” (as such term is used in the proxy rules seek to effect a merger, consolidation, recapitalization, reorganization, restructuring, sale, lease, exchange or other disposition of all or substantially all of the Securities and Exchange Commission) stockholders assets of or other business combination involving, or a tender or exchange offer for securities of, the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 its subsidiaries or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with material portion of the Company’s or its Subsidiaries’ stockholders such subsidiary’s business or others assets or any other type of transaction that would result in connection with the solicitation a change in control of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) other than as contemplated by the Transaction Agreement, 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 of its securities or assets;
(e) seek to exercise any control or influence over the management of the Company or its board of directors or any of the businesses, operations or policies of the Company;
(f) form, join or in any way participate in a “group” within as defined in Regulation 13D-G under the meaning of Section 13(d)(3) Exchange Act, in connection with any of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;foregoing; or
(eg) acquire, offer to acquire or agree to acquirerequest the Company, directly or indirectly, alone to amend or in concert with others, by purchase, exchange or otherwise, (i) waive any provision of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;this paragraph.
(h) seekNotwithstanding anything to the contrary in this Section 16, alone nothing shall (i) restrict sales of Common Stock by any Affiliate or subsidiary of the Stockholder as nominee of customers or in concert connection with othersbanking, to controlbrokerage or asset management activities in the ordinary course of business, change (ii) prevent or influence restrict acquisitions of a previously unaffiliated business or entity that owns securities of the management, Company; (iii) prevent the Board or policies increase of the Stockholder’s Beneficial Ownership of securities of the Company above 3% or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination more of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders securities of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure then outstanding as a result of any intention, plan, or arrangement (whether written or oral) inconsistent with a reduction in the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision number of this Standstill or seek permission to or make any public announcement with respect to any provision securities of the StandstillCompany outstanding due to the repurchase of securities by the Company; or
or (jiv) announce prevent an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any inadvertent increase of the actions restricted or prohibited under clauses (a) through (j) Stockholder’s Beneficial Ownership of this Standstill, or take any action that might result in securities of the Company having to make a public announcement regarding any above 3% or more of the matters referred securities of the Company then outstanding, provided, that, the Stockholder, after becoming aware of such inadvertent increase and upon the written request of the Company, sells such securities of the Company as necessary to in clauses reduce the Stockholder’s Beneficial Ownership of securities of the Company below 3% within ten (a10) through (j) business days of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingsuch request.
Appears in 1 contract
Samples: Registration and Investor Rights Agreement (Legg Mason Inc)
Standstill. Executive agrees that for a period During the Term, except as otherwise provided in this Agreement (including Section 13 (Mutual Nondisparagement)), without the prior written consent of 18 months from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting Consultant shall not, and shall cause his respective affiliates, not to, directly:
A. acquire, offer or seek to acquire, agree to acquire or acquire rights to acquire (except by resolution approved by a majority way of all members stock dividends or other distributions or offerings made available to holders of voting securities of the BoardCompany generally on a pro rata basis), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, tender offer, or exchange offer, through the acquisition or of control of another person person, by joining a group, through swap or entity, hedging transactions or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company (other than through a broad-based market basket or index) or any Subsidiaryvoting rights decoupled from the underlying voting securities which would result in the ownership or control of, or other beneficial ownership interest in, 5% or more than of the acquisition then-outstanding shares of the Common Stock in the aggregate (the “Ownership Cap”);
B. (i) nominate, recommend for nomination or give notice of less than one-half an intent to nominate or recommend for nomination a person for election at any annual or special meeting of one percent of the outstanding voting securities stockholders of the Company;
(b) make, or any action by written consent of the Company’s stockholders in lieu thereof, and any adjournment, postponement, rescheduling or continuation thereof (a “Stockholder Meeting”) at which the Company’s directors are to be elected; (ii) initiate, encourage or participate in any way solicitation 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) initiate, encourage or participate inin any solicitation of proxies in respect of any stockholder proposal for consideration at, directly or indirectlyother business brought before, any Stockholder Meeting; (v) call or seek to call, or request to call of, alone or in concert with others, any “solicitation” Stockholder Meeting, whether or not such a meeting is permitted by the Company’s Amended and Restated Certificate of Incorporation (as such term is used in amended and as may be further amended from time to time, the proxy rules “Certificate of Incorporation”) or the Securities Amended and Exchange Commission promulgated pursuant Restated Bylaws (as amended and as may be further amended from time to Section 14 of time, the Exchange Act“Bylaws”), including any “town hall meeting”; or (vi) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to adviseinitiate, encourage or influence participate in any manner whatsoever any person “withhold” or entity similar campaign with respect to the voting of any voting securities of the Company or any SubsidiaryStockholder Meeting;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) C. form, join or in any way participate in a “group” within the meaning any group or agreement of Section 13(d)(3) of the Exchange Act any kind with respect to any voting securities of the Company Company, including in connection with any election or removal contest with respect to the SubsidiariesCompany’s directors or any stockholder proposal or other business brought before any Stockholder Meeting;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) D. deposit any of the assets, tangible and intangible, voting securities of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly voting trust or indirectly, in subject any financing for the purchase of any Company voting securities to any arrangement or securities convertible or exchangeable into or exercisable for any agreement with respect to the voting securities or assets of the Company or any Subsidiary;
(g) otherwise actthereof; E. seek publicly, alone or in concert with others, to seek to propose to amend any provision of the Company Certificate of Incorporation or any Subsidiary or any Bylaws;
F. demand an inspection of their respective stockholders or the Company’s books and records as a stockholder of the Company;
G. make any public statement proposal with respect to: (i) any change in the number or term of directors serving on the Board or the filling of any vacancies on the Board, (ii) any change in the capitalization or dividend policy of the Company, (iii) any other change in the Company’s management, governance, corporate structure, affairs or policies, (iv) 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 (v) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Securities and Exchange Act of 1934 (the “Exchange Act”);
H. enter into any negotiations, agreements or understandings with any third party with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or advise, assist, encourage or seek to persuade any third party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing; I. publicly make or disclose in any way advance publicly any request or proposal to that the Company or the Board amend, modify or waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the StandstillAgreement; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or J. take any action that might result in challenging the validity or enforceability of this Section 4 or this Agreement unless the Company having to make a public announcement regarding any of is challenging the matters referred to in clauses (a) through (j) validity or enforceability of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Agreement;
Appears in 1 contract
Samples: Consulting Agreement (Cutera Inc)
Standstill. Executive agrees that for a 3.1 During the period of 18 months from commencing on the Effective Date and ending on the date that is twelve (12) months after the Effective Date (the “Standstill Period”), without the prior written approval of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to asIndependent Directors, the “Standstill”):Stockholder shall not, and shall not permit its Affiliates, subsidiaries, or associates to:
(ai) acquire, offer or propose to acquireacquire (whether publicly or otherwise), solicit an offer to sell or agree or seek to acquire, directly or indirectly, alone or in concert with otherssolicit the acquisition of, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct equity, debt or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting equity-linked securities of the Company or any Subsidiaryif, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting following such acquisition, Stockholder and its controlled Affiliates would own securities of the CompanyCompany representing more than [·]%2 of the issued and outstanding shares of Common Stock (as adjusted for any subdivision, combination, stock split, stock dividend or other recapitalization or reclassification);
(bii) make, or in any way participate inin any solicitation of any proxy to vote any of the Voting Shares (or other equity securities of the Company) with respect to any matter (including, directly or indirectly, alone or in concert with otherswithout limitation, any “solicitation” (as such term is used in contested solicitation for the proxy rules election of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity directors with respect to the voting Company), other than solicitations or acting as a participant in support of any voting securities all of the Company or any SubsidiaryCompany’s nominees including, without limitation, the nominees for Independent Directors pursuant to Article 1;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(diii) form, join or in any way participate in 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 Company for purposes of the transactions contemplated by Section 3.1(i) or Section 3.1(ii), or deposit any Voting Shares (or other equity securities of the Company) in a voting trust or similar arrangement or subject any Voting Shares (or other equity securities of the Company) to any voting agreement or similar arrangement, or grant any proxy with respect to any Voting Shares (or other equity securities of the Company) (other than to a designated representative of the Company pursuant to a proxy statement of the Company), other than as contemplated by this Agreement;
(iv) commence or offer to commence (whether publicly or otherwise) any tender or exchange offer for any securities of the Company or the Subsidiariesits subsidiaries;
(ev) acquireeffect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange propose (whether publicly or otherwise) to effect, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary cause or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrangeparticipate in, or in any way participateassist or facilitate any other person to effect or seek, directly offer or indirectly, propose (whether publicly or otherwise) to effect or participate in any financing for the purchase of any voting securities merger or securities convertible or exchangeable into or exercisable for any voting securities or assets of business combination with the Company or any SubsidiaryChange in Control Transaction;
(gvi) otherwise act, alone call or in concert with others, to seek to propose to the Company or any Subsidiary or any call a meeting of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or initiate any Subsidiarystockholder proposal for action by stockholders of the Company;
(ivii) make enter into any publicly disclosed proposaldiscussions, public statementnegotiations, public inquiry arrangements or public disclosure of understandings with any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement other person with respect to any provision of the Standstill; orforegoing activities;
(jviii) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enableassist, assist knowingly encourage, act as a financing source for or encourage others to do otherwise invest in any other person in connection with any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.foregoing activities;
Appears in 1 contract
Samples: Letter Agreement Regarding the Purchase of a Majority of the Shares (CompoSecure, Inc.)
Standstill. Executive Employee agrees that for a period of 18 eighteen (18) months from the date of ExecutiveEmployee’s termination of employment for any reason, neither Executive Employee nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.
Appears in 1 contract
Samples: Employment Agreement (Amedisys Inc)
Standstill. Executive agrees that for a During the period commencing on the Closing Date and ending on the earliest of 18 months from (i) the [**] anniversary of the Closing Date, (ii) the date the Company publicly announces its intent to initiate or consummate any merger, consolidation, acquisition, scheme, business combination or other extraordinary transaction in which the Company or any of Executive’s its Subsidiaries is a constituent entity or party, (iii) the submission or announcement of the intent to make any bona fide offer or attempt by any third party to acquire all or a substantial portion of the securities or assets of the Company through any means, process or structure and (iv) the termination of employment for any reasonthe Collaboration Agreement (the “Standstill Period”), neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willthe Purchaser agrees that, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior approval of the BoardCompany, the Purchaser will not, directly or indirectly, in through its Controlled Affiliates or as a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):other Person:
(a) acquirepurchase, offer or propose to acquirepurchase, solicit an offer to sell or agree to acquirepurchase or otherwise acquire beneficial ownership of any Common Shares or Common Share Equivalents, directly or indirectlyprovided that, alone or after the issuance by the Company of Common Shares as a result of an equity financing, the Purchaser may purchase Common Shares in concert with others, by purchase, tender offer, exchange offer, through routine trading transactions in an amount up to such number of shares as would result in the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities Purchaser maintaining its percentage ownership of the Company or any Subsidiary, other than the acquisition in the aggregate issued and outstanding Common Shares as of less than one-half of one percent of the outstanding voting securities of the Companyimmediately prior to such issuance;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) solicitation of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage advise or influence in any manner whatsoever any person or entity with respect to the voting of of, any voting securities of the Company or any Subsidiaryof its Subsidiaries, or seek or propose to influence, advise, change or control the management, supervisory board, management board, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(c) initiatemake a proposal for, propose or “solicit” offer of (as such term is used in the proxy rules with or without conditions) any acquisition of the Securities and Exchange Commission) stockholders of or extraordinary transaction involving the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 its Subsidiaries or Rule 14a-4 under the Exchange Act, any of their respective securities or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersassets;
(d) formeffect or seek to effect (including, join without limitation, by entering into 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 public or otherwise) to effect or participate (except as a holder of Common Shares) in a “group” within the meaning merger, consolidation, division, acquisition or exchange of Section 13(d)(3) substantially all assets or equity, change of the Exchange Act with respect to any voting securities of control transaction, recapitalization, restructuring, liquidation or similar transaction involving the Company or the any of its Subsidiaries;
(e) acquireenter into any discussions, offer negotiations, arrangements or understandings with or form a group with, any third party in connection with such third party’s taking, planning to acquire take, or agree seeking to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) take any of the assets, tangible and intangible, actions prohibited by clauses (a) through (d) of the Company this Section 5.2 or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change control or influence the management, supervisory and management boards or the Board management or policies of the Company or any SubsidiaryCompany, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstillincluding its Subsidiaries; or
(jf) announce an intention to dopublicly disclose any intention, plan or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do regarding any of the actions restricted or prohibited under by clauses (a) through (je) of this StandstillSection 5.2; provided that, the foregoing restrictions of this Section 5.2 shall not (i) restrict private, non-public discussions regarding a transaction otherwise prohibited by this Section 5.2 with the supervisory board or management board of the Company; (ii) prohibit the Purchaser or its subsidiaries from acquiring securities of, or take from entering into any action merger or other business combination with, another Person that might result in the Company having to make a public announcement regarding any beneficially owns securities of the matters referred Company; provided, that the purpose of entering into such transaction is not to circumvent the terms in clauses this Section 5.2; or (aiii) through (j) limit the ability of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others the Purchaser to take, any action inconsistent with the foregoingexercise its rights under Section 5.12.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months from During the date of Executive’s termination of employment for any reasonCooperation Period, neither Executive nor any of his affiliates or persons or entities the D. E. Shaw Parties will not, and will cause their controlled Affiliates and their collective Covered Persons acting at his direction or on their behalf (collectively with his assistance willthe D. E. Shaw Parties, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the Board“Restricted Persons”) to not, directly or indirectly, without the prior consent, invitation, or authorization of the Company or the Board, in any manner (the obligations pursuant to this Section 13 being referred to aseach case, the “Standstill”):in writing:
(ai) acquire, or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly by purchase or indirectlyotherwise, or direct any Third Party in the acquisition of record or beneficial ownership of any shares of Common Stock or securities convertible into shares of Common Stock, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any shares of Common Stock or securities convertible into shares of Common Stock, in each case, if such acquisition, offer, agreement or transaction would result, if consummated, in the D. E. Shaw Parties (together with their Affiliates) having beneficial ownership of, or aggregate economic or voting exposure to, more than 7.5% of the Common Stock outstanding at such time;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities a meeting of the Company;
’s shareholders (bor the setting of a record date therefor), (B) make, or in any way participate in, directly or indirectlyseek, alone or 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 the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any shareholder proposal to the Company or the Board or any committee thereof, (D) seek, alone or in concert with others the removal of any member of the Board or (E) conduct a referendum of shareholders of the Company or engage in any “withhold” or similar campaign;
(iii) make any request for any shareholder list or similar materials or other books and records of the Company or any of its subsidiaries, whether pursuant to Section 220 of the Delaware General Corporation Law or any other statutory or regulatory provisions providing for shareholder access to books and records of the Company or its Affiliates;
(iv) engage in any “solicitation” (as such term is used in the proxy rules promulgated under the Exchange Act but without giving effect to any of the Securities and Exchange Commission exclusions from such definition under SEC rules, including without limitation the exclusion relating to solicitations of ten (10) or fewer shareholders) of proxies 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” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated pursuant to Section 14 of under the Exchange Act) in any such solicitation of proxies proxies;
(v) disclose, other than as is consistent with the Board’s recommendation in connection with such matter, to any Third Party, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, its voting or consent intentions or votes as to matters submitted to a shareholder vote during the Cooperation Period (it being understood that instructing Third Parties to implement such votes or consents to vote, whether subject to or exempt from the proxy rules, or in a ministerial manner in accordance with this Agreement would not be a violation of this provision);
(vi) knowingly seek to advise, encourage or influence in any manner whatsoever any person or entity Third Party, other than as is consistent with the Board’s recommendation on such matter, with respect to the voting of (or execution of a written consent in respect of) or disposition of any voting securities of the Company;
(vii) take any action in support of or make any proposal, announcement or request, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, with respect to, (A) any change in the number, term or identity of directors of the Company or the filling of any vacancies on the Board other than as provided under Section 1 of this Agreement, (B) any change in the business, capitalization, capital allocation policy or dividend policy of the Company or sale, spinoff, splitoff or other similar separation of one or more business units or any other Extraordinary Transaction, (C) any other change to the Board or the Company’s management, business or corporate or governance structure, (D) any waiver, amendment or modification to the Organizational Documents, (E) causing the Common Stock 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 or any Subsidiaryto become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(cviii) initiateknowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any other person with respect to (A) the giving or withholding of any proxy relating to, propose or “solicit” other authority to vote, any Common Stock, or (as such term is used in the proxy rules B) conducting any type of the Securities and Exchange Commission) stockholders of referendum relating to the Company or any Subsidiary (including for the approval avoidance of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate doubt with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented respect to the Company’s management or its Subsidiaries’ stockholdersthe Board) (other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter);
(dix) form, join join, knowingly encourage or any way knowingly participate in a or act in concert with any “group” within the meaning of as defined in Section 13(d)(3) of the Exchange Act Act, with respect to any voting shares of Common Stock or securities convertible into shares of Common Stock, other than solely with Affiliates of the Company D. E. Shaw Parties with respect to any shares of Common Stock or the Subsidiariessecurities convertible into shares of Common Stock now or hereafter owned by them;
(ex) acquireenter into a voting trust, offer arrangement or agreement, or subject any shares of Common Stock or securities convertible into shares of Common Stock to acquire any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement (B) solely with Affiliates of the D. E. Shaw Parties or (C) granting proxies in solicitations approved by the Board;
(xi) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer, or agree to acquiresell, all or substantially all, directly or indirectly, alone through swap or in concert with others, by purchase, exchange hedging transactions or otherwise, shares of Common Stock or any voting rights decoupled from the underlying Common Stock held by a Restricted Person to any Third Party;
(ixii) institute, solicit, knowingly assist or join as a party any of the assetslitigation, tangible and intangible, of arbitration or other proceeding against or involving the Company or any Subsidiary of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) bringing litigation against the Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 10, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing or participating in bona fide commercial or legal disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights or (E) responding to or complying with validly issued legal process;
(xiii) make any disclosure or announcement, either publicly or in a manner reasonably likely to result in or require public disclosure, regarding any intent, purpose, place or proposal with respect to the Board, the Company, its management, policies or affairs, strategy, operations, financial results, any of its securities or assets or this Agreement, except in a manner consistent with the Press Releases (as defined below) and the other provisions of this Agreement;
(xiv) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(c); or
(xv) make any request or submit any proposal to amend or waive the terms of this Agreement (including this subclause), in each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal. The Restricted Persons will instruct their respective Representatives acting on their behalf to comply with this Section 2(c) and any failure by such Representatives to comply with such instructions shall be deemed a breach by the D. E. Shaw Parties of this Section 2(c). The restrictions in this Section 2 shall terminate automatically upon any material breach of this Agreement by the Company (including, without limitation, a failure by the Company to appoint any of the New Directors or any Replacement New Director, as applicable, to the Board in accordance with Section 1, a failure to form the Business Review Committee or adopt the Business Review Committee Charter, a failure to perform any of the actions contemplated in Section 1(f), or a failure by the Company to issue the Press Releases (as defined below) in accordance with Section 3) upon five (5) business days’ written notice by any of the D. E. Shaw Parties to the Company if such breach has not been cured within such notice period (or immediately upon such notice if such breach is incapable of being cured); provided, that the D. E. Shaw Parties (i) specify in such written notice, in reasonable detail, the material breach on which they are relying to terminate its obligations under this Section 2 and (ii) direct are not in material breach of this Agreement at the time such notice is given or indirect rightsduring the notice period. Notwithstanding anything to the contrary in this Agreement, warrants nothing in this Agreement (including, without limitation, the restrictions in this Section 2) will prohibit or options restrict any of the Restricted Persons from (A) making any factual statement to acquire comply with any assets subpoena, legal requirement, or other legal process or to respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person) or making any regulatory filing required pursuant to the Exchange Act or any other applicable regulatory regime (provided, that any such legal requirement or regulatory filing does not arise from or relate to an action by a Restricted Person that would otherwise violate Section 2(a) or this Section 2(c) and any such statement, whether or not in a regulatory filing, does not otherwise violate Section 2(a) or this Section 2(c)), (B) communicating privately with the Board or any of the Company’s senior officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, result in or require the Company or the D. E. Shaw Parties to make public disclosure (of any Subsidiary;
kind) with respect thereto, (fC) arrangetaking actions in furtherance of identifying and nominating director candidates in connection with the 2025 Annual Meeting, so long as such actions are not intended to, and would not reasonably be expected to, result in or require the Company or the D. E. Shaw Parties to make public disclosure (of any kind) with respect thereto, (D) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, or in any way participate(E) negotiating, evaluating and/or trading, directly or indirectly, in any financing index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Company. Furthermore, for the purchase avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of way the Company or any Subsidiary;
(g) otherwise act, alone or New Directors in concert with others, to seek to propose to the Company or any Subsidiary or any exercise of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingfiduciary duties.
Appears in 1 contract
Samples: Cooperation Agreement (L3harris Technologies, Inc. /De/)
Standstill. Executive (a) Each Investor agrees that for a period of 18 months that, except as expressly permitted elsewhere in this Agreement, from the date of Executive’s termination of employment for any reasonEffective Date until the Termination Date, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written approval of the Board, directly or indirectly, in neither it nor any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireof its controlled Affiliates shall, directly or indirectly, alone or in concert with others, by purchasein any manner:
(i) publicly announce or otherwise disclose an intent to propose or enter into or agree to enter into, tender offersingly or with any other person, exchange offerdirectly or indirectly, through the (A) any form of business combination or acquisition or control other transaction relating to a material amount of another person assets or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiaryof its subsidiaries, (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 or the Series A Preferred Shares, whether or not such transaction involves a Change of Control of the Company;
(ii) engage in any solicitation of proxies or written consents to vote any voting securities of the Company, or conduct any non-binding referendum with respect to any voting securities of the Company, or knowingly encourage, assist or participate in any other || way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to any voting securities of the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote any securities of the Company in opposition to any recommendation or proposal of the Board;
(iii) acquire, offer, or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any interests in any of the Company’s indebtedness, Common Stock, Series A Preferred Shares, or other equity interests in the Company (including any rights decoupled from the underlying securities of the Company, but excluding Common Stock issued in connection with a stock split, stock dividend or similar corporate action initiated by the Company with respect to any securities beneficially owned by any of the Investors and/or any Affiliate), in each case, if such acquisition, offer, proposal or agreement would result in the Investors acquiring beneficial ownership (amongst all of the Investors and any Affiliate) in excess of 18.16% of the shares of Common Stock and Series A Preferred Shares outstanding (on an as converted to common basis), provided, however, any purchases pursuant to Section 1(i) hereof shall be excluded from the limitations provided herein;
(iv) acquire or agree, offer, seek, or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) in one or a series of related transactions, a majority or more of the assets or business of the Company or any rights or options to acquire any such assets or business from any person, in each case other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(bv) makeseek to advise, encourage, support or influence any person with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company, other than in a manner consistent with Section 2;
(vi) take any public action in support of or make any public proposal or request that constitutes: (A) advising, controlling, changing, or influencing the Board or management of the Company or its subsidiaries, including any plans or proposals to change the number or term of directors, to elect directors, to fill any vacancies on the Board, or to remove directors, (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company or its subsidiaries, (C) any way participate inother material change in the Company’s management, directly business, or indirectlycorporate or governance structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or Bylaws, operations, business, corporate strategy, corporate structure, capital structure or allocation, share repurchase or dividend policies 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, in each case except as permitted expressly by this Agreement; ||
(vii) initiate, propose, or otherwise “solicit” stockholders of the Company for the approval of any stockholder proposals (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) other than in accordance with Section 2;
(viii) communicate with stockholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act other than in a manner consistent with Section 2;
(ix) call or seek to call, 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 Company’s Certificate of Incorporation or Bylaws, including, but not limited to, a “town hall meeting;”
(x) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Common Stock or Series A Preferred Shares in any voting trust or similar arrangement or subject any Common Stock or Series A Preferred Shares to any voting agreement or pooling arrangement, other than (A) customary brokerage accounts, margin accounts and prime brokerage accounts and (B) otherwise in accordance with this Agreement;
(xi) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” (as such term is used in for the proxy rules election or removal of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity directors with respect to the voting Company or, except as expressly provided in this Agreement, seek, encourage or take any other action with respect to the election or removal of any voting securities of the Company or any Subsidiarydirectors (it being acknowledged that those public communications that are permitted and those SEC filings that are required under this Agreement shall not constitute such encouragement);
(c) initiate, propose or “solicit” (as such term is used in the proxy rules of the Securities and Exchange Commission) stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(dxii) form, join or in any other way participate in any a “partnership, limited partnership, syndicate, or other group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to the securities of the Company (other than a “group” that includes all or some of the Investors, but does not include any other entities or persons that are not members of the Investor Group as of Effective Date); provided, further, that the Investor Group Schedule 13D shall not be amended to add additional members to the Investor Group other than persons that are wholly owned as of the Effective Date by an existing member of the Investor Group, so long as any such additional wholly owned member agrees to be bound by the terms and conditions of this Agreement;
(xiii) commence, join, encourage, or support any lawsuit, arbitration, or other legal claim against the Company or any of its officers or directors, including without limitation any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors provided, however, that nothing in this clause (xii) will in any way limit the rights of either party under this Agreement or any other agreement between the parties, including by (A) commencing litigation to enforce such rights, or (B) making counterclaims with respect to any voting proceeding initiated by, or on behalf of, the Company against an Investor; ||
(xiv) disclose publicly, or privately in a manner that could reasonably be expected to become public, 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;
(xv) make any request or submit any proposal to amend the terms of this Section 3 other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party;
(xvi) take any action challenging the validity or enforceability of any of the provisions of this Section 3 or publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to either (A) obtain any waiver or consent under, or any amendment of, any provision of this Agreement, or (B) take any action challenging the validity or enforceability of any provisions of this Section 3;
(xvii) make any public communication in opposition to (A) any merger, acquisition, amalgamation, recapitalization, restructuring, disposition, distribution, spin-off, asset sale, joint venture or other business combination or (B) any financing transaction, in each case involving the Company or any of its subsidiaries;
(xviii) call or seek to call any special meeting of the Company (other than calling or the Subsidiaries;
(e) acquire, offer seeking to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any call a special meeting of the assets, tangible holders of the Series A Preferred Shares pursuant to the Series A Certificate of Designation) or action by consent resolutions or make any request under Section 220 of the Delaware General Corporation Law or other applicable legal provisions regarding inspection of books and intangible, records or other materials (including stocklist materials) of the Company or any Subsidiary of its subsidiaries; or
(xix) advise, assist, knowingly encourage, or seek to persuade any person or entity to take any action or make any statement inconsistent with any of the foregoing.
(b) Notwithstanding anything in Section 3(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict any Investor or the Continuing Class 1 Director from (i) communicating privately with any director on the Board or any of the Company’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) direct identifying potential director candidates to serve on the Board so long as such actions do not create a public disclosure obligation for the Investor Group or indirect rightsthe Company, warrants are not publicly disclosed by the Investor Group or options its Affiliates and are undertaken on a basis reasonably designed to acquire be confidential, (iii) privately communicating to any assets of their investors or potential investors information regarding the Company based on publicly available information, provided, that such communications are subject to reasonable confidentiality obligations and are not otherwise reasonably expected to be publicly disclosed, (iv) communicating with stockholders of the Company or any Subsidiary;
and others in a manner that does not otherwise violate Section 3(a) of this Agreement, (fv) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any making a public statement about how such Investor intends to vote and the || reasons therefor with respect to any mergerpublicly announced Change of Control transaction, business combination(vi) exchanging, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiarytendering, or otherwise seekparticipating in any tender or exchange offer with respect to the Common Stock or Series A Preferred Shares, alone whether or in concert not such transaction involves a Change of Control of the Company, on the same basis as the other stockholders of the Company, (vii) taking any action necessary to comply with othersany law, election or appointment to or representation onrule, or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over an Investor, or (viii) exercising any right permitted under the Series A Certificate of Designation and transaction documents related to nominate the purchase of the Series A Preferred Shares, including calling upon the Company to call a special meeting for the purpose of electing Series A Preferred Directors.
(c) As of the Effective Date, none of the Investors are engaged in any discussions or propose negotiations and do not have any agreements or understandings, written or oral, whether or not legally enforceable, concerning the nomination acquisition of beneficial ownership of any candidate to, the Board or the removal of any member securities of the BoardCompany, or propose and have no actual knowledge that any matter to be voted upon by the other stockholders of the Company have any present or future intention of taking any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with actions that if taken by the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do Investors would violate any of the actions restricted or prohibited under clauses (a) through (j) terms of this StandstillAgreement. For the avoidance of doubt, or take any action that might result nothing in this Agreement shall be deemed to limit the Company having to make exercise in good faith by the Continuing Class 1 Director of his fiduciary duties in his capacity as a director of the Company.
(d) Except as otherwise provided in this Agreement, this Agreement shall automatically terminate upon the public announcement regarding any of a transaction that will constitute a Change of Control involving the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingCompany.
Appears in 1 contract
Samples: Cooperation Agreement (Lifecore Biomedical, Inc. \De\)
Standstill. Executive Each Holder hereby agrees that for a period not to, and to cause each of 18 months their respective Affiliates not to, from the date of Executive’s termination of employment for any reason, neither Executive nor any of his affiliates or persons or entities acting at his direction or with his assistance willClosing Date until the Trigger Date, unless specifically invited an exemption or waiver is otherwise approved in advance in writing by the Board, acting by resolution approved by a majority of all members of the Board, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):Company:
(a) purchase or otherwise acquire, offer or propose to acquire, or solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, Beneficial Ownership of any Capital Stock or any Derivative Securities, other than (i) shares and securities received by purchaseway of stock dividend, tender offerstock reclassification, exchange offer, through the acquisition reorganization or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities similar capital transaction involving Capital Stock of the Company or any Subsidiary, other than (ii) pursuant to or in connection with a Transfer contemplated by Section 2.1(a); provided that no Holder shall be in breach of this Section 3.1(a) as a result of the acquisition in the aggregate (x) by any Juniper Director of less than one-half of one percent any Capital Stock of the outstanding voting securities Company pursuant to (A) the grant or vesting of any equity compensation awards granted by the Company to any Juniper Director, or (B) the exercise of any stock options, restricted stock units, or similar awards relating to any Capital Stock of the CompanyCompany granted by the Company to any Juniper Director or (y) of any Capital Stock of the Company pursuant to the Monitoring and Oversight Agreement;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with othersothers (including by or through any Group), any “solicitation” of “proxies” (as such term is terms are defined or used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act) to vote Common Stock or other Capital Stock of proxies the Company or to provide or withhold consents with respect to voteCommon Stock or other Capital Stock of the Company, whether subject to or exempt from the proxy rules, or seek to advise, encourage advise or knowingly influence in any manner whatsoever any person Person or entity with respect to the voting of of, or the providing or withholding consent with respect to, any voting securities Common Stock or other Capital Stock of the Company Company, in each case, other than in a manner that is recommended by the Board; provided, however, that the foregoing will not be deemed to restrict or limit in any manner in which any Holder or any Subsidiaryof its Affiliates votes any of its respective shares of Common Stock or Capital Stock, directly or by proxy, subject to compliance with the other terms and conditions of this Agreement;
(c) initiateexcept as permitted by Section 3.2, propose either directly or “solicit” indirectly in concert with others (as such term is used including by or through any Group) make any public announcement or offer with respect to (with or without conditions), or make or submit a proposal (other than to the Board) with respect to, or ask or request any other Person to make an offer or proposal (other than to the Board) with respect to, any transaction that would, if consummated, be reasonably likely to result in the proxy rules a change of control of the Securities Company, including a merger, business combination, restructuring, reorganization, recapitalization, tender or exchange offer or asset disposition involving the Company or any of its Subsidiaries, in each case, unless such transaction is approved or affirmatively recommended by the Board; provided, however, that any Holder and Exchange Commissionits Affiliates shall be permitted to (i) vote on any such transaction in accordance with the terms and conditions of this Agreement and (ii) tender into any tender offer or exchange offer not commenced by a Holder or any of its Affiliates;
(d) except as provided in this Agreement, either directly or indirectly in concert with others (including by or through any Group) call or seek to call a meeting of stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such a stockholder proposal; , seek representation on the Board or otherwise communicate with the board of directors (or equivalent governing body) of any of the Company’s controlled Affiliates, seek to remove any members of the Board or its Subsidiaries’ stockholders expand or reduce the size of the Board or otherwise act alone or in concert with others in connection with (including by or through any Group) to seek control of the solicitation Board or the board of proxies directors (or consents or matters presented to equivalent governing body) of any of the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiariescontrolled Affiliates;
(e) acquireform, offer join, knowingly encourage the formation of or knowingly engage in discussions relating to acquire the formation of, or agree to acquireparticipate in a Group for purposes of seeking control, directly or indirectlyinfluencing the control or management of, alone or in concert with others, by purchase, exchange or otherwise, the Company (i) any other than a Group consisting solely of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;Investor Group); or
(f) arrangeeither directly or indirectly in concert with others (including by or through any Group) publicly announce any intention, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable enter into or exercisable for disclose any voting securities plan or assets of arrangement inconsistent with the foregoing (including publicly making a request that the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiarywaive, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive amend or terminate any provision provisions of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Section 3.1);
Appears in 1 contract
Standstill. Executive agrees The Investor Parties agree that for until the earlier of (i) a period Change of 18 months from Control (as defined in the date Certificates of Executive’s termination Designations) and (ii) the later of employment for any reason(A) the first day on which no Investor Designee serves on the Board and the Investor has no rights (or have irrevocably waived their right) under Section 5.10 (except Section 5.10(g)) and (B) the two-year anniversary of the Closing Date (the later of such dates, neither Executive nor any the “Standstill Expiration Date”), without the prior written approval of his affiliates or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing by the Board, acting by resolution approved by a majority of all members of the BoardInvestor Parties will not, directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):and will cause its Affiliates not to:
(a) acquire, offer or propose seek to acquire, solicit an offer agree to sell acquire or agree make a proposal to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, purchase or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rightsrights to acquire any securities of the Company or any of its Affiliates, warrants or options to acquire, or any securities convertible into or exchangeable forfor any such securities, any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock or any assets or property of the Company or any Subsidiary of the Company;
(b) 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 voting securities of the Company or any Subsidiaryof its Subsidiaries, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities 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 seek the removal of any director from the Board, in each case inconsistent with the recommendations of the Board;
(bc) makemake any public announcement with respect to, or offer, seek, propose or indicate an interest in any way participate in, directly (in each case with or indirectly, alone or in concert with otherswithout conditions), any “solicitation” (as such term is used in the proxy rules merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of substantially all of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) of proxies assets, properties or consents to vote, whether subject to or exempt from the proxy rules, or seek to advise, encourage or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company or any Subsidiary;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules Subsidiary of the Securities and Exchange CommissionCompany, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) stockholders with any other Person regarding any of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersforegoing;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company control or influence, in any Subsidiary or any of their respective stockholders or make any public statement with respect to any mergermanner, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board board of directors or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiaryits Subsidiaries;
(ie) make any publicly disclosed proposal, public statement, public proposal or statement of inquiry or public disclosure of disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with any of the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or;
(jf) announce an intention advise, assist, knowingly encourage or direct any Person to do, or to enter into advise, assist, encourage or direct any arrangement or understanding with others (whether written or oral) other Person to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses foregoing;
(ag) through (j) of this Standstill, or take any action that might result would, in effect, require the Company having to make a public announcement regarding the possibility of a transaction or any of the matters events described in this Section 5.07;
(h) enter into any discussions, negotiations, arrangements or understandings with any third party (including, without limitation, security holders of the Company, but excluding, for the avoidance of doubt, any Investor Parties) 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 with respect to any securities of the Company or otherwise in connection with any of the foregoing; or
(i) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.07, provided, that this clause shall not prohibit the Investor Parties from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.07, 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 any Person; provided, however, that nothing in this Section 5.07 will limit (1) the Investor Parties’ ability to vote (subject to Section 5.11), Transfer or Hedge (subject to Section 5.08), limit or restrict any transfer pursuant to a Permitted Loan or any foreclosure thereunder or transfer in lieu of a foreclosure thereunder, convert (subject to Section 6 of the Certificates of Designations), privately make and submit to the Company and/or the Board any proposal that is intended by the Investor Parties to be made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expect to require public disclosure by any Person), participate in rights offerings made by the Company to all holders of its Common Stock, receive any dividends or similar distributions with respect to any securities of the Company held by Investor Parties, tender shares of the Common Stock, Preferred Stock or securities issued pursuant to Section 5.16 into any tender or exchange offer (but subject to Section 5.08), acquire any securities of the Company pursuant to Section 5.16, effect an adjustment to the Conversion Rates pursuant to the Certificates of Designations or otherwise exercise rights under its Common Stock or Preferred Stock, acquire any securities of the Company in the event that bankruptcy or insolvency proceedings are commenced by the Company, including through the (A) acquisition of shares of Common Stock or any other Company securities through an exchange offer or through a plan of reorganization for the Company which is confirmed by order of the United States Bankruptcy Court or (B) participation in or consummation of any transaction relating to the Company effected in connection with any proposed Company auction sale process under the jurisdiction of a United States Bankruptcy Court, (2) the Investor Parties’ or their respective Affiliates’ ability to acquire, offer or seek to acquire or make a proposal to acquire or otherwise purchase up to, (X) for each of 2019, 2020 and 2021, 2.5% in the aggregate in any such calendar year of the then outstanding Common Stock (with any unused amounts in any calendar year being carried over to succeeding calendar years) and (Y) for 2022 and thereafter, any unused amount referred to in clauses the preceding clause (aX) through (jfor the avoidance of doubt, such acquired or otherwise purchased shares of Common Stock shall exclude shares of Common Stock issued in connection with the conversion of the Series A Preferred Stock) provided, further, that prior to any purchase pursuant to this clause (2), the Investor Parties shall have received a certificate from the Company’s chief financial officer certifying that the proposed purchase by the Investor Party would not result in an “ownership change” within the meaning of Section 382(g) of this Standstillthe Code, but determined as if the threshold contained in Section 382(g)(1)(A) was “40 percentage points” (rather than “50 percentage points”), which certificate the Company will use its reasonable efforts to provide in good faith within two (2) Business Days, if true or (3) the ability of any Investor Director to vote or otherwise intentionally take, exercise his or solicit, her legal duties or cause otherwise act in his or encourage others to take, any action inconsistent with her capacity as a member of the foregoingBoard.
Appears in 1 contract
Samples: Investment Agreement (Zix Corp)
Standstill. Executive agrees that for a period Until completion of 18 months from the date 2023 Annual Meeting of Executive’s termination the Stockholders of employment for the Company (the “Annual Meeting”), no Purchaser, severally and not jointly with any reasonother Purchaser, neither Executive nor or any of his affiliates its Affiliates that are directly or persons or entities acting at his direction or with his assistance will, unless specifically invited in writing indirectly controlled by such Purchaser (the Board, acting by resolution approved by a majority of all members of the Board“Controlled Affiliates”), directly or indirectly, in any manner (the obligations pursuant to this Section 13 being referred to as, the “Standstill”):shall:
(a) acquire, offer solicit proxies or propose to acquire, solicit an offer to sell written consents of holders of Common Stock or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities 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 Subsidiary, other than the acquisition in the aggregate of less than one-half of one percent of the outstanding voting securities of the Company;
(b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any become a “solicitationparticipant” (as such term is used defined in the proxy rules Instruction 3 to Item 4 of the Securities and Exchange Commission Schedule 14A promulgated pursuant to Section 14 of under the Exchange Act) in or assist any other Person in any “solicitation” of proxies any proxy, consent or consents other authority (as such terms are defined under the Exchange Act) with respect to voteany shares of Common Stock (other than such encouragement, whether subject advice or influence as is consistent with the Board of Directors’ recommendation in connection with such matter) (for the avoidance of doubt, excluding such activities among members of the Investor and their Controlled Affiliates); or (ii) encourage any other Person to solicit or exempt from the proxy ruleswithhold any proxy, consent or seek other authority with respect to any shares of Common Stock or otherwise advise, encourage or influence any other Person with respect to voting any shares of Common Stock (other than such encouragement, advice or influence as is consistent with the Board of Directors’ recommendation in any manner whatsoever any person connection with such matter);
(b) form or entity join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, with respect to the voting Common Stock (for the avoidance of doubt, excluding any voting securities group composed solely of members of the Company Investor and their Controlled Affiliates) or otherwise support or participate in any Subsidiaryeffort by any third party with respect to the matters set forth in clause (a) above;
(c) initiate, propose or “solicit” (as such term is used in the proxy rules present at any Special Meeting of the Securities and Exchange Commission) stockholders Stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act(each, a “Special Meeting”), or otherwisethrough action by written consent, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ proposal for consideration for action by stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholders;
(d) form, join or any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company or the Subsidiaries;
(e) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible and intangible, of the Company or any Subsidiary or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any Subsidiary;
(f) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Company or any Subsidiary;
(g) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, Board of Directors or propose any matter nominee for election to the Board of Directors or seek representation on the Board of Directors;
(d) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any Special Meeting) or deposit any shares of Common Stock in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any Special Meeting or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(e) without the prior approval of a majority of the members of the Board of Directors, separately or in conjunction with any other Person or entity in which it is or proposes to be voted upon by either a principal, partner or financing source, publicly propose or participate in, effect or seek to effect, any extraordinary corporate transaction, tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization, change in the stockholders Company’s dividend policy, change in the Company’s Certificate of Incorporation or the Company’s Bylaws, business combination involving the Company or a material amount of the assets or businesses of the Company or any Subsidiaryaction which would result in a class of securities of the Company being delisted from a Trading Market or ceasing to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association or becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act or encourage any other person in any such activity;
(if) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of disclose any intention, plan, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or;
(jg) announce an intention to doinstigate, encourage, join, act in concert with or to enter into assist any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others third party to do any of the actions restricted or prohibited under clauses foregoing; or
(ah) through (j) of this Standstill, or take any action that might result in would reasonably be expected to require the Company having to make a public announcement regarding the possibility of any of the matters referred to events described in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoingSection 4.18.
Appears in 1 contract
Standstill. Executive agrees that for a period of 18 months (a) Except as otherwise set forth in or permitted by this Agreement, from the date of Executive’s termination this Agreement until the expiration of employment for any reasonthe Standstill Period (as defined below), neither Executive nor each member of the Investor Group shall not, and shall cause its respective Affiliates, Associates, principals, directors, general partners, officers, employees and, to the extent acting on behalf or at the direction of any of his affiliates the foregoing, agents and other representatives (collectively, the “Related Persons” and each a “Related Person”) not to, directly or persons or entities acting at his direction or with his assistance willindirectly, unless specifically invited in writing by without the Board, acting by resolution approved by a majority of all members prior written approval of the Board:
(i) 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 solicitation of proxies (the obligations pursuant or written consents) with respect to this Section 13 being referred to as, the “Standstill”):
(a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, tender offer, exchange offer, through the acquisition or control of another person or entity, or otherwise, any direct or indirect beneficial interest in any voting securities or direct or indirect rights, warrants or options to acquireof the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote (or withhold the vote of) any securities convertible into of the Company;
(ii) grant any proxy, consent or exchangeable for, other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) 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 (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(iii) engage in any Subsidiary, other than course of conduct with the acquisition in the aggregate purpose of less than one-half of one percent causing stockholders of the outstanding voting securities 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;
(biv) makecall or seek to call, or in any way participate in, directly or indirectlyrequest the call of, alone or in concert with others, any meeting of stockholders, or action by consent resolutions, whether or not such a meeting or consent is permitted by the Restated Certificate of Incorporation of the Company, as amended (the “Charter”) or the Amended and Restated Bylaws of the Company (the “Bylaws”), including any “town hall meeting”;
(v) act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or seek, facilitate, encourage or take any other action with respect to the appointment, election or removal of any directors;
(vi) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, 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 such term is used broker or agent for compensation submit a proposal or offer for, or make any communication in the proxy rules opposition to (A) any form of business combination or acquisition or other transaction relating to assets or securities of the Securities and Exchange Commission promulgated pursuant Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to Section 14 the Company or any of its subsidiaries, (C) any form of tender or exchange offer for the Common Shares, whether or not such transaction involves a change of control of the Company, or any securities or debt of any of the Company’s subsidiaries, (D) any financing transaction involving the Company or any of its subsidiaries, or (E) any liquidation or dissolution of the Company or any of its subsidiaries;
(vii) (A) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, through swap or hedging transactions or other Synthetic Position, or otherwise (the taking of any such action, an “Acquisition”), any ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of, or interest in, any securities or assets of proxies the Company such that after giving effect to any such Acquisition, the Investor Group or consents any of its Related Persons holds, directly or indirectly, in excess of a 13.1% interest in the then-outstanding securities of the Company, (B) purchase or otherwise acquire, or offer, seek, propose or agree to voteacquire, whether subject any interest in any indebtedness of the Company, or (C) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any assets or liabilities of the Company or any right or option to acquire any such asset or liabilities from any person, in each case in this clause (C) other than securities of the Company, and in each case in this paragraph (vii), other than by way of distributions or offerings made available to holders of Common Shares generally on a pro rata basis or pursuant to a Voting Exempt Matter (as defined in Section 5);
(viii) engage in any short sale, forward contract 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 exempt derives any significant part of its value from a decline in the proxy rules, market price or value of the securities of the Company;
(ix) seek to advise, encourage encourage, support or influence in any manner whatsoever any person or entity with respect to the voting of (or execution of a written consent in respect of), acquisition of or disposition of any voting securities of the Company or its subsidiaries;
(x) other than in open market sale transactions whereby the identity of the purchaser is not known, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any Subsidiary;rights decoupled from the underlying securities of the Company held by the Investor Group or any Related Person to any Third Party that, to the Investor Group’s knowledge (after due inquiry, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including, but not limited to, information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time or would increase the beneficial ownership interest of any Third Party who, collectively with its Affiliates and Associates, has a beneficial or other ownership interest of, in the aggregate, more than 4.9% of the shares of voting securities of the Company outstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or investment fund managers;
(cxi) initiatetake any action in support of or make any proposal or request that constitutes (or would constitute if taken), propose or “solicit” make any statement or have a discussion with any known stockholder of the Company concerning or with the effect of: (as such A) advising, controlling, changing or influencing the Board or management of the Company and its subsidiaries, including any plans or proposals to change the voting standard with respect to director elections, number or term is used of directors or to fill any vacancies on the Board, (B) any change in the proxy rules capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of the Securities and Company or its subsidiaries, (C) any other change in the Company’s or its subsidiaries’ management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Charter 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 CommissionAct;
(xii) pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, communicate with stockholders of the Company or any Subsidiary for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage others to initiate any such stockholder proposal; or otherwise communicate with the Company’s or its Subsidiaries’ stockholders or others in connection with the solicitation of proxies or consents or matters presented to the Company’s or its Subsidiaries’ stockholdersothers;
(dxiii) form, join or in any other way participate in a any partnership, limited partnership, syndicate or “group” (within the meaning of Section 13(d)(3) of the Exchange Act or otherwise) with respect to the Company or its securities (other than with members of the Investor Group);
(xiv) demand a copy of the Company’s list of stockholders or its other books and records or make any voting securities request under Section 220 of the General Corporation Law of the State of Delaware or other applicable legal provisions regarding inspection of books and records or other materials (including stocklist materials) of the Company or the Subsidiaries;any of its subsidiaries;
(exv) acquirecommence, offer to acquire encourage, join as a party, solicit or agree to acquiresupport any litigation, arbitration, derivative action in the name of the Company or any class action or other proceeding against or involving the Company or any of its current or former Company Related Persons (as defined below);
(xvi) make or publicly advance any request or submit any proposal, directly or indirectly, alone to amend, modify or waive the terms of this Section 4 other than through non-public communications with the Company, which the Company may accept or reject in concert with othersits sole and absolute discretion, by purchase, exchange or otherwise, (i) that would not trigger public disclosure obligations for any member of the assets, tangible and intangible, of Investor Group or its Related Persons or reasonably be expected to trigger public disclosure obligations for the Company or any Subsidiary Company Related Persons; or
(xvii) enter into any discussions, negotiations, agreements or (ii) direct understandings with any person or indirect rightsentity with respect to any action the Investor Group is prohibited from taking pursuant to this Section 4, warrants or options advise, assist, knowingly encourage or seek to acquire persuade any assets person or entity to take any action or make any statement with respect to any such 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 4 or elsewhere in this Agreement shall prohibit or restrict the Investor Group or its Related Persons from communicating privately with members of the Board or executive officers of the Company or regarding any Subsidiary;
(f) arrangematter, or in so long as such communications are not intended to and would not require any way participatepublic disclosure of such communications. The Investor Group shall not, and shall cause its Related Persons not to, seek to do, directly or indirectly, in through any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable for any voting securities or assets director of the Company or other individual, anything that would be prohibited under this Agreement if done by the Investor Group or any Subsidiary;Related Person.
(gb) otherwise act, alone or in concert with others, to seek to propose to the Company or any Subsidiary or any of their respective stockholders or make any public statement with respect to any merger, business combination, consolidation, sale, tender offer, exchange offer, restructuring, reorganization, dissolution, liquidation, recapitalization or other transaction involving the Company or any Subsidiary;
(h) seek, alone or in concert with others, to control, change or influence the management, the Board or policies of the Company or any Subsidiary, or otherwise seek, alone or in concert with others, election or appointment to or representation on, or to nominate or propose the nomination of any candidate to, the Board or the removal of any member of the Board, or propose any matter to be voted upon by the stockholders of the Company or any Subsidiary;
(i) make any publicly disclosed proposal, public statement, public inquiry or public disclosure of any intention, plan, or arrangement (whether written or oral) inconsistent with the foregoing, or make or disclose any request or proposal to amend, waive or terminate any provision For purposes of this Standstill or seek permission to or make any public announcement with respect to any provision of the Standstill; or
(j) announce an intention to do, or to enter into any arrangement or understanding with others (whether written or oral) to do, or to finance, intentionally advise, enable, assist or encourage others to do any of the actions restricted or prohibited under clauses (a) through (j) of this Standstill, or take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (a) through (j) of this Standstill, or otherwise intentionally take, or solicit, or cause or encourage others to take, any action inconsistent with the foregoing.Agreement:
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