Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly: (i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement; (ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose; (iii) except as otherwise expressly provided in this Agreement, 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; (iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates; (v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates; (vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company; (vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or (viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a). (b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Shareholders' Agreement (Signet Jewelers LTD), Investment Agreement (Signet Jewelers LTD)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of From the Closing and (y) Date until the date on which no nominee designated by Standstill Termination Date, the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder Investors will not, directly or indirectlyand will cause Abry Partners II, LLC and Abry Partners II, LLC’s controlled Affiliates not to, do any of the following:
(i) acquire, offer engage in any “solicitation” of proxies or propose to acquire, solicit an offer to sell consents or agree to acquire, directly or indirectly, alone or become a “participant” in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect a “beneficial ownershipsolicitation” (as such terms are defined in Rule 13d-3 and Rule 13d-5 Regulation 14A under the Exchange Act) of Common Sharesproxies or consents (including, without limitation, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options solicitation of consents that seeks to acquire, or securities convertible into or exchangeable for, two percent (2%call a special meeting of stockholders of Parent) or more of to vote any voting securities of the CompanyParent, excluding any Common Shares or other securities acquired pursuant to a conversion in each case inconsistent with the recommendations of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this AgreementParent Board;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the grant a proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of Parent to any Person other than the Company or seek to propose to influence, advise, change or control the management, board Parent Board and executive officers of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeParent;
(iii) except as seek representation on the Parent Board, submit nominations for the election or removal of any directors of Parent, or seek to remove any directors of Parent (in each case, other than with respect to, or in their capacity as, the Series A Directors in accordance with the Parent Charter);
(iv) initiate, propose, submit, encourage or otherwise expressly provided solicit stockholders of Parent for the approval of one or more stockholder proposals in this Agreement, a manner inconsistent with the recommendations of the Parent Board;
(v) 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;
(iv) acquireParent, 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase purpose of two percent (2%) acquiring, holding, voting or more disposing of any voting securities of Parent (in each case other than solely among the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Investors and their Affiliates);
(vi) otherwise actadvise, alone assist, knowingly encourage or in concert with othersinfluence, or direct any Person to seek do, or to propose advise, assist, knowingly encourage or influence, or direct any other Person to the Company or do, any of its shareholders the following: (A) any amalgamation, merger, business combination, tender of the foregoing or exchange offer, restructuring, recapitalization, liquidation otherwise circumventing any of the limitations of this Section or other transaction to or (B) voting any voting securities of Parent in a manner inconsistent with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies recommendations of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;Parent Board; or
(vii) make any request or submit any proposal to amendwaive, waive terminate or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to amend the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions terms of this Section 2.3, 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 7.16 other than through non-public disclosure thereof; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions communications with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)Parent.
(b) Nothing Notwithstanding the foregoing, nothing in this Section 2.3(a7.16 will limit: (i) will limit the Shareholder’s Investors’ ability to (1) either vote (subject to for, vote against or abstain from voting on, any proposal submitted for a vote of stockholders which is not initiated or conducted in violation of Section 1.2 above7.16(a), Transfer (subject 2) privately make and submit to Section 2.4 belowthe Parent and/or the Parent Board any proposal that is intended by the Investors to be made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expected to require public disclosure by any Person), convert (subject 3) exercise rights as a holder of Series A Preferred Stock under the Parent Charter or any other Transaction Document or (4) in response to an unsolicited inquiry or proposal from any Person in respect of any action prohibited, or reasonably likely to be prohibited, by Section 7 7.16(a), to ascertain facts from the Person making such inquiry or proposal for the sole purpose of informing themselves about such inquiry or proposal and the Person that made it and to refer such Person to this Section 7.16 and to limit its conversation or other communication exclusively to such referral and such ascertaining of facts; (ii) any Series A Director in taking any action as a member of the Series A Certificate) Parent Board, including, without limitation, voting or otherwise exercise rights taking any action in respect of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act acting in his or her capacity as a member of the Parent Board; or (iii) the Investors’ ability to dispose of any of its securities of the Parent, either publicly or privately.
Appears in 2 contracts
Samples: Investment and Transaction Agreement (Pointer Telocation LTD), Investment and Transaction Agreement (Id Systems Inc)
Standstill. (a) Until Xxxxxxx hereby agrees that effective as of the later Commencement Date and continuing until the earlier of (x) the three (3)-year anniversary such time, if any, as Xxxxxxx beneficially owns less than 20% of the Closing then issued and outstanding shares of New Common Stock for a period of 30 consecutive days and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate Termination Date, neither Xxxxxxx nor any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)of its Affiliates will, each Shareholder agrees thatacting alone, without the prior approval as part of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) or otherwise in concert with respect to any voting securities of other Person, unless specifically requested in writing by the Company;Board on an unsolicited basis:
(ivi) after the Purchase Period (as defined below), acquire, offer to acquire or agree to acquire, directly offer to acquire, or indirectly, alone seek or in concert with others, by purchase, exchange or otherwise, (i) propose to acquire beneficial ownership of any of the assets, tangible or intangible, of the Company New Common Stock or any of its Affiliates or (ii) direct or indirect rights, warrants rights or options to acquire any assets New Common Stock (including from a third Person); or
(ii) initiate, propose, finance, negotiate, seek to effect, guarantee the financing of, assist any other Person in obtaining financing for, or knowingly cause (1) any proxy contest or other proposal to obtain board representation, (2) any stockholder proposal, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise or (3) any Change of Control Transaction, except that Xxxxxxx may do any of the Company foregoing with respect to a proposed Change of Control Transaction if such proposed Change of Control Transaction is subject to the voting requirements set forth in Section 2(b); or
(iii) except with respect to a proposed Change of Control Transaction expressly subject to the voting requirements set forth in Section 2(b), “solicit” (within the meaning of Rule 14a-1(l) under the Exchange Act) any proxies to vote, or seek to influence any other Person with respect to the voting of any Voting Securities on any of its Affiliatesthe matters set forth in Section 3(a)(ii); or
(iv) except with respect to a proposed Change of Control Transaction expressly subject to the voting requirements set forth in Section 2(b), except for such assets as are then being offered for sale by take any action that would require the Company under applicable law, rule or stock exchange policy to make a public announcement regarding any of its Affiliates;the matters set forth in Section 3(a)(ii); or
(v) arrangeexcept with respect to a proposed Change of Control Transaction expressly subject to the voting requirements set forth in Section 2(b), form, join or participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities; or
(vi) nominate an individual or individuals for election to the Board at any meeting (or by written consent in lieu of a meeting) of stockholders of the Company, other than as expressly provided in this Agreement with respect to the Xxxxxxx Nominee, or effect or attempt to effect the removal of any members of the Board (other than the Xxxxxxx Nominee); provided, that compliance by Xxxxxxx with the provisions of Sections 1 or 2(b) shall not constitute a violation of this provision; or
(vii) other than as expressly provided in any way participatethis Agreement with respect to the Xxxxxxx Nominee, directly or indirectlyindirectly seek to elect, appoint or otherwise place (or seek to have elected, appointed or otherwise placed) a representative of Xxxxxxx on the Board, it being the express agreement of Xxxxxxx and the Company that Xxxxxxx shall be entitled to only one seat on the Board, subject to the conditions set forth in this Agreement, prior to the Termination Date; or
(viii) seek to call, or to request the call of, a special meeting of the stockholders of the Company; or
(ix) deposit any financing for the purchase of two percent (2%) or more of any voting securities of the Company into a voting trust, or subject any securities convertible into of the Company to any agreement or exchangeable arrangement with respect to the voting of such securities (other than pursuant to Section 2 of this Agreement), or exercisable for two percent other agreement or arrangement having similar effect to which, in each case, a Person who is not an Affiliate of Xxxxxxx is a party; or
(2%x) or more of execute any voting securities or assets of written stockholder consent with respect to the Company, except for such assets as are then being offered for sale by in accordance with Section 2 of this Agreement; or
(xi) except with respect to a proposed Change of Control Transaction expressly subject to the Company voting requirements set forth in Section 2(b), seek or request permission to do any of its Affiliates;
the foregoing, make, initiate, take or participate in any demand, request, action (vilegal or otherwise) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofAgreement; or
(viiixii) take disclose any action that might result in intention, plan or arrangement inconsistent with the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing Notwithstanding the foregoing provisions of this Section 3, the parties to this Agreement acknowledge and agree that:
(i) on the Effective Date or at any time during the period from the Effective Date to the date that is 270 days after the Effective Date (the “Purchase Period”), Xxxxxxx may acquire beneficial ownership of additional shares of New Common Stock; provided, that in no event, before, during or after the Purchase Period, may Xxxxxxx acquire or beneficially own in excess of 45% of the shares of New Common Stock then issued and outstanding (inclusive of the shares of New Common Stock issued to Xxxxxxx by the Company on the Effective Date in exchange for all of the Class 3 and Class 4 claims of Xxxxxxx pursuant to the Plan); provided further, that Xxxxxxx may acquire beneficial ownership of additional shares of New Common Stock (including after the Purchase Period) pursuant to Xxxxxxx’x exercise of its preemptive rights set forth in Section 2.3(a11, subject to the 45% beneficial ownership limitation set forth above in this Section 3(b)(i);
(ii) the provisions of Section 3(a) shall not restrict the actions of Xxxxxxx taken in respect of a Change of Control Transaction the terms of which require as a condition to consummation of such Change of Control Transaction compliance with the applicable voting restrictions set forth in Sections 2(b)(ii), (iii) and (iv) (and which condition is not waived); and
(iii) the provisions of Section 3(a) will not limit the Shareholder’s in any respect Xxxxxxx’x ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected privately make proposals to the Board pursuant with respect to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member any of the Boardactions, activities, or matters otherwise restricted by Section 3(a).
Appears in 2 contracts
Samples: Standstill Agreement (Supermedia Inc.), Standby Purchase Agreement (Idearc Inc.)
Standstill. During the period (asuch period, the “Standstill Term”) Until commencing as of the Closing and continuing until the later of (xA) the three second (3)-year 2nd) anniversary of the Closing Date, (B) the expiration of the Director Period, and (yC) the date on which no nominee designated the Investor and its Affiliates beneficially own less than five percent (5.0%) of the shares of Common Stock then issued and outstanding, the Investor, SK Holdings and SK E&S shall not (and shall cause their respective Affiliates not to), except as expressly approved or invited in writing by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectlyCompany:
(ia) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireother than Permitted Purchases, directly or indirectly, alone acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives the Investor or any of its Affiliates the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”);
(b) make a tender, exchange or other offer to acquire Common Stock and/or Common Stock Equivalents;
(c) directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company or propose any matter to be voted upon by the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board (excluding the Designated Director, if any);
(d) directly or indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) for securities of the Company (if such offer or proposal would, if consummated, result in concert with othersa Change of Control of the Company, by purchase such offer or otherwiseproposal is referred to as an “Acquisition Proposal”); provided, two percent however, that from and after the filing of a Schedule 14D-9 (2%) or more successor form of any direct or indirect “beneficial ownership” (as defined in Tender Offer Solicitation/Recommendation Statement under Rule 13d-3 and Rule 13d-5 under 14d-9 of the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or recommending that stockholders accept any such offer filed after such offer has commenced, the Investor shall not be prohibited from taking any of the actions otherwise acquired pursuant to prohibited by this Section 3.1(d) for so long as the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this AgreementBoard maintains and does not withdraw such recommendation;
(iie) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone solicit proxies or consents or propose or seek or become a participant in concert with others, any “solicitation” of “proxies” to vote a solicitation (as such terms are used defined in the proxy rules of the SEC promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any manner whatsoever securities of the Company to any Person arrangement or agreement with respect to the voting of such securities, including the granting of any voting proxy;
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or seek any Derivative, or any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to propose to influencethe Company, advise, change or control in each case without the management, board of directors, policies, affairs or strategy prior written consent of the Company by way Board (a transaction described in clauses (i) and (ii) that would result in a Change of any public communication or other communications Control, is referred to securityholders intended for such purposeas a “Business Combination”);
(iiih) except as otherwise expressly provided act in this Agreementconcert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” within as terms are used in the meaning of Section 13(d)(3) rules of the Exchange Act SEC with respect to the Company or any voting securities of the Company;
(ivi) acquirerequest or propose to the Board or the Company (or any of its officers, offer to acquire or agree to acquiredirectors, Affiliates employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, alone any amendment or waiver of any provision of this Section 3.1 (including this clause (i));
(j) make any public announcement regarding, or take any action that could require the Company to make a public announcement regarding, a potential Business Combination or any of the matters set forth in concert with others, by purchase, exchange or otherwise, clauses (a) through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any of Person relating to the assetsforegoing actions referred to in (a) through (i) above; provided, tangible or intangiblehowever, of that nothing contained in this Section 3.1 shall prohibit the Company Investor or any of its Affiliates or (ii) direct or indirect rightsfrom making confidential, warrants or options non-public proposals to acquire any assets of the Company or any of its Affiliates, except Board for such assets as are then being offered for sale a transaction involving a Business Combination following the public announcement by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing after the Closing that it has entered into a definitive agreement with a Third Party for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other a transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as involving a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)Business Combination.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Investor Agreement (Plug Power Inc), Stock Purchase Agreement (Plug Power Inc)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Each H Partners Group Member agrees that, without the prior approval written consent of the Boardentire Board specifically expressed in a written resolution, such Shareholder from the date of this Agreement until six months after the Information Termination Date (the “Standstill Period”), he or it will not, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone whether by purchase, tender or in concert with othersexchange offer, through the acquisition of control of another person, by purchase joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), through swap or hedging transactions or otherwise, two economic or beneficial ownership of any additional securities of the Company or any rights decoupled from the underlying securities of the Company representing, including on an as-converted or as-exchanged basis, in the aggregate (amongst all of the H Partners Group Members and any of their Affiliates and Associates) in excess of twenty percent (220%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) shares of Common SharesStock outstanding;
(ii) effect, seek to effect or in any securities convertible way assist or exchangeable into Common Shares facilitate any other person or direct entity or indirect rights, warrants group in effecting or options seeking to acquire, effect any: (w) tender offer or securities convertible into or exchangeable for, two percent (2%) or more of any voting exchange offer to acquire securities of the Company; (x) acquisition of any interest in any material asset or business of any of the Tempur Companies; (y) merger, excluding any Common Shares acquisition, share exchange or other securities acquired pursuant business combination involving the Tempur Companies; or (z) recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to a conversion the Tempur Companies or any material portion of their businesses;
(iii) commence, encourage, or support any derivative action in the name of the Series A Preference SharesCompany, bonus issue, dividend or distributions by any class action against the Company or any of its officers or directors, in each case, in order to, directly or indirectly, effect any of the actions expressly prohibited by this Agreement or cause the Company to amend or waive any of the provisions of this Agreement; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any H Partners Group Member from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against an H Partners Group Member, or (C) exercising statutory dissenters, appraisal or similar rights under the Delaware General Corporation Law; provided, further, that the foregoing shall also not prevent the H Partners Group Members from responding to or complying with a validly issued legal process in connection with litigation that it did not initiate, invite, facilitate or encourage, except as otherwise acquired pursuant permitted in this Section (2.2)(a)(iii);
(iv) disclose publicly any intent, purpose, plan or proposal with respect to the Transaction Documents (as defined in Board, the Investment Agreement)Company, including pursuant to Section 2.1 its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(iiv) except as otherwise expressly provided in this Agreemententer into any negotiations, make, agreements or in understandings with any way participate in, directly person or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act entity with respect to any voting securities of the Company;
(iv) acquireforegoing, offer or advise, assist, knowingly encourage or seek to acquire persuade any person or agree entity to acquire, directly take any action or indirectly, alone or in concert make any statement with others, by purchase, exchange or otherwise, (i) respect to any of the assetsforegoing, tangible or intangible, otherwise take or cause any action or make any statement inconsistent with any of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatesforegoing;
(vi) otherwise act, alone make any request or in concert with others, submit any proposal to seek to propose to amend the Company or any terms of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or this Agreement other transaction to or than through non-public communications with the Company or otherwise seek, alone or in concert with others, that would not be reasonably determined to control, change or influence the management, board of directors or policies of the Company or nominate trigger public disclosure obligations for any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Companyparty;
(vii) make take any request action challenging the validity or proposal to amend, waive or terminate enforceability of any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.32.2 or publicly disclose, which or cause or facilitate 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(including, without limitation, the filing of any document with the Securities and Exchange Commission 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 2.2; or
(viii) take otherwise take, or solicit, cause or encourage others to take, any action that might result inconsistent with the foregoing. Notwithstanding anything to the contrary, nothing in this Agreement shall prohibit or restrict any director of the Company, including the Director, as applicable, from exercising his or her rights or complying with his or her fiduciary duties as a director of the Company having to make a public announcement regarding any or from participating in board room discussions or private discussions with other members of the Board, including with respect to any matters referred to in clauses (i) through (vii) of this Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)2.2.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Non Disclosure and Standstill Agreement (Tempur Sealy International, Inc.), Non Disclosure and Standstill Agreement (H Partners Management, LLC)
Standstill. (a) Until the later of (x) the three (3)-year anniversary Each member of the Closing PW Group agrees that during the Covered Period, unless specifically requested in writing by the Company, acting through a resolution of a majority of the Company’s directors not including the PW Designee, it shall not, and shall cause each of its Affiliates or Associates (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “PW Affiliates,” provided that no portfolio company of the PW Group shall be deemed a “PW Affiliate” so long as such portfolio company (i) has not received from the PW Group or the PW Designee information concerning the Company or its business, and (yii) is not acting at the date request of, in coordination with or on which no nominee designated by behalf of the Majority Approved Holders serves on PW Group or the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their rightPW Designee), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will notnot to, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectlyin any manner, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;:
(iii) except as otherwise expressly provided in this Agreementmake, makeengage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote proxies (as such terms are used in the proxy rules of the SEC promulgated pursuant but without regard to Section 14 the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act), whether subject to) or consents to vote, or exempt from the federal proxy rules, seek to advise advise, encourage or influence in any manner whatsoever any Person person with respect to the voting of any voting securities of the Company or seek to propose to influenceany securities convertible or exchangeable into or exercisable for any such securities (collectively, advise, change or control the management, board of directors, policies, affairs or strategy “securities of the Company”) for the election of individuals to the Board or to approve stockholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company by way (as such terms are defined or used under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting) or make or be the proponent of any public communication stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or other communications to securityholders intended for such purposeotherwise);
(iiiii) except as otherwise expressly provided in this Agreement, form, join join, encourage, influence, advise or in any way participate in a “group” within the meaning of any Group (as such term is defined in Section 13(d)(3) of the Exchange Act Act) with any persons who are not PW Affiliates with respect to any voting securities of the CompanyCompany or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iviii) 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 (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, (i) any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in the PW Group (together with the PW Affiliates) owning, controlling or otherwise having any beneficial or other ownership interest in more than 12.9% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent the PW Group and the PW Affiliates, collectively, exceed the ownership limit under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial or other ownership interest of the PW Group and the PW Affiliates do not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such 12.9% limitation;
(iv) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the PW Group or any PW Affiliate to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company, (D) a PW Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would knowingly result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 9.9% in the aggregate of the shares of Common Stock outstanding at such time, except in a transaction approved by the Board;
(v) 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 way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, tangible liquidation, dissolution or intangible, of other extraordinary transaction involving the Company or any of its Affiliates subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by the PW Group or a PW Affiliate of any securities of the Company into any tender or exchange offer or vote by the PW Group or a PW Affiliate of any securities of the Company with respect to any Extraordinary Transaction or (iiB) direct prohibit any member of the PW Group or indirect rights, warrants or options a PW Affiliate from offering to acquire any purchase assets of the Company or any if the sale of its Affiliates, except for such assets as are then being offered for sale is initiated by the Company through an open bidding process or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for from offering to purchase the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets if a member of the Company, except for such assets as are then being ’s management has publicly offered for sale by to acquire all or substantially all of the equity securities of the Company or any of its Affiliatesin a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(vi) otherwise actengage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(vii) (A) call or seek to call, alone or in concert with others, to any meeting of shareholders, including by written action, (B) seek to propose to the Company or any of its shareholders any amalgamationrepresentation on, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person candidate to, the Board, except as a director who is not nominated by set forth herein, (C) seek the then incumbent directors, or propose removal of any matter to be voted upon by the shareholders member of the Company;
Board, (viiD) solicit consents from shareholders or otherwise act or seek to act by written action, (E) conduct a referendum of shareholders or (F) make a request for any request shareholder list or proposal other Company books and records, whether pursuant to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman 302A.461 of the Board of the Company seeking an amendment MBCA or waiver of the provisions of this Section 2.3, 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; orotherwise;
(viii) take any action in support of or make any proposal or request that might result constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company having waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) [Intentionally omitted]
(x) make a any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xi) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the matters referred to in clauses (i) through (vii) of Section 2.3(a)foregoing, or announce an intention advise, assist, knowingly encourage or seek to do, persuade any Third Party to take any action or enter into make any arrangement or understanding or discussions statement with others respect to do, any of the actions restricted foregoing, or prohibited under clauses otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(ixii) through publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit the PW Group or its directors, officers, partners, employees, members or agents (viiacting in such capacity) (“Representatives”) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of Section 2.3(a)such communications.
(b) Nothing in Section 2.3(a) will limit Each member of the Shareholder’s ability PW Group shall make commercially reasonable efforts to cause all shares of Common Stock beneficially owned, directly or indirectly, by it to be present for quorum purposes and to be voted, at the 2013 Annual Meeting, and further agrees that at the 2013 Annual Meeting it shall make commercially reasonable efforts to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 in favor of the Series A CertificateCompany Slate. At any subsequent special shareholders’ meeting (or adjournments or postponements thereof) or otherwise exercise rights of its Common Shares or Series A Preference Shares or during the ability Covered Period, each member of the Shareholders’ director designee elected PW Group shall make commercially reasonable efforts to cause all shares of Common Stock beneficially owned, directly or indirectly, by it to be present for quorum purposes and to be voted in favor of the election to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of those director nominees nominated for election by the Board and against the removal of any directors whose removal is not recommended by the Board.
(c) Nothing in this Section 2 shall prohibit or in any way limit any actions that may be taken by the PW Designee acting solely as a director of the Company (including, without limitation, voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board and making suggestions or raising issues to the Board) consistent with his fiduciary duties as a director of the Company (it being understood and agreed that the PW Group and the PW Affiliates shall not seek to do indirectly through the PW Designee anything that would be prohibited if done by the PW Group or the PW Affiliates).
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Nomination Agreement (PW Partners Atlas Fund LP), Nomination Agreement (Famous Daves of America Inc)
Standstill. (a) Until the later of (x) the three (3)-year anniversary Each member of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Group agrees that, without during the prior approval of the BoardStandstill Period, such Shareholder 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:
(ia) 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 purchase, tender offer, exchange offer, agreement or otherwisebusiness combination or any other manner, two percent (2%) or more beneficial ownership in excess of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under 15% of the Exchange Act) outstanding shares of Common Shares, any securities convertible Stock (based on the latest annual or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities quarterly report of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of Company filed with the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including SEC pursuant to Section 2.1 of this Agreement;
(ii13 or 15(d) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from excluding the federal proxy rules, seek acquisition of equity-based compensation pursuant to advise or influence in any manner whatsoever any Person with respect to Section 13 hereof and the voting exercise of any voting securities of the Company options or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way conversion of any public communication or other communications to securityholders intended for convertible securities comprising such purposeequity-based compensation;
(iiib) except as otherwise expressly provided submit 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 nominate any candidate for election to the Board or oppose the directors nominated by the Board (provided, that such nominees were not nominated in contravention of this Agreement, );
(c) 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 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, 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) call 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, 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;
(ivf) acquireeffect 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 acquire effect, or agree to acquirecause or participate in, directly or indirectly, alone or in concert with othersany way assist, by purchasesolicit, exchange 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 any material assets or intangible, businesses of the Company or any of its Affiliates or subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting other securities of the Company or any securities convertible into of any Affiliate of the Company if, after completion of such transfer or exchangeable acquisition or exercisable for two percent 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 (2%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 transferee acquiring beneficial ownership of more than 4.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or more constitute a breach of this Section 8, (iii) any voting securities tender offer or assets exchange offer, merger, change of the Companycontrol, except for such assets as are then being offered for sale by acquisition or other business combination involving the Company or any of its Affiliates;
subsidiaries or (viiv) otherwise actany recapitalization, alone restructuring, liquidation, dissolution or in concert other extraordinary transaction with others, to seek to propose respect to the Company or any of its shareholders subsidiaries (any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company transactions or nominate any Person events described in (i) through (iv) above are referred to as a director who is not nominated “Sale Transaction”), unless such Sale Transaction has been approved by a majority of the Board and has been announced by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause paragraph shall not prohibit require members of the Shareholder Group or Xxxxxx to vote in favor of a Shareholder from making a confidential request Sale Transaction that was approved by the Board;
(g) publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to the Chief Executive Officer obtain any waiver, or Chairman of the Board of the Company seeking an consent under, or any amendment or waiver of, any of the provisions of Section 7 hereof or this Section 2.38, which the Company may accept or reject otherwise seek (in its sole discretion, so long as any such request is made in a manner that does not would require public disclosure thereofby any of the members of the Shareholder Group, Xxxxxx or their respective Affiliates or Associates) to obtain any waiver, consent under, or amendment of any provision of this Agreement;
(h) disparage the Company or any member 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, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(i) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the Company’s securities;
(j) enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to engage, in any of the foregoing; or
(viiik) take or cause or induce or assist others to take any action that might result in the Company having to make a public announcement regarding inconsistent with any of the matters referred foregoing; provided, that, notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit Xxxxxx from engaging in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise lawful act in his or her capacity as a member director of the BoardCompany 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. (a) Until You hereby represent to the later of (x) the three (3)-year anniversary Company that, as of the Closing and (y) date hereof, except as set forth in reports filed prior to the date on which no nominee designated by hereof with the Majority Approved Holders serves on the Board U.S. Securities and the Shareholders are no longer entitled Exchange Commission, neither you nor, to designate your knowledge, any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of your present Representatives as of the Boarddate hereof, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “has beneficial ownership” ownership (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates subsidiaries. In consideration for your being permitted to share Proprietary Information with certain persons, you agree that, unless requested in writing in advance by the Special Committee’s Representatives (for so long as the Special Committee is in existence and the Company’s Representatives acting at the direction of the independent and disinterested members of the Board of Directors after the Special Committee has been disbanded), neither you nor your Representatives will, at any time during the twelve month period commencing on the date hereof (or, at any time during such period, assist, advise, act in concert or participate with or knowingly encourage others to), directly or through others (iiincluding, without limitation, in your capacity as a trustee): (a) direct acquire (or indirect rightsagree, warrants offer, seek or options propose to acquire acquire, in each case, publicly or privately), by purchase, tender offer, exchange offer, agreement or business combination or in any other manner, any ownership, including, but not limited to, beneficial ownership, as defined in Rule 13d-3 under the Exchange Act, of any material assets or businesses or any securities of the Company or any direct or indirect subsidiary thereof, or any rights or options to acquire such ownership (including, without limitation, from any third party) (provided that this clause (a) shall not prohibit (i) any of its Affiliatesyou from gifting or otherwise transferring to another signatory hereto, shares of common stock held by you (provided that you give the Company written notice of the details of any such gift or transfer no later than three days after it is made) or from acquiring shares of stock pursuant to distributions to shareholders of the Company by the Company, (ii) Exxx X. Xxxxxxxxx and Pxxxx X. Xxxxxxxxx from being awarded or receiving any grants of equity awards or equity securities of the Company upon vesting or exercise of such awards pursuant to their roles as members of the Company’s management and/or the Company’s board of directors); (iii) any of you or any of your parents, step-parents, spouses, aunts, uncles, children, nephews, nieces, cousins, or other blood relatives, and any trusts for which you now or in the future serve in any administrative or trust capacity (collectively, the “Family Owners,” and each individually, a “Family Owner”) or for which any Family Owner is a trustee or beneficiary, from making or receiving bona fide gifts or transfers of any equity securities of the Company from any other Family Owner, (iv) any transfer or acquisition of rights or beneficial ownership in respect of any equity securities of the Company made in respect of bona fide estate planning, resulting from or to give effect to, any estate plans; or (v) acting in any fiduciary role with respect to any Family Owner(s), or trust for the benefit of such Family Owner(s), including, but not limited to, executor, trustee, attorney-in-fact, agent, and/or custodian, and taking all any and all actions required thereby; (b) publicly or privately offer to enter into, or publicly or privately propose (except for such assets in your capacity as are then being offered for sale an officer of the Company where the Company is acting as an acquiror, in each case only if expressly invited to do so by the Special Committee), any merger, business combination, recapitalization, restructuring or other extraordinary transaction with the Company or any direct or indirect subsidiary thereof; (c) unless (i) the Board of its Affiliates;
Directors or the Special Committee adversely alters the status, duties and terms of employment (vother than changes to compensation in the ordinary course of business by the Compensation Committee of the Board) arrangein a material respect or expressly threatens the employment status of Exxx X. Xxxxxxxxx or Pxxxx X. Xxxxxxxxx or requests either of their resignations as an officer, employee or director of the Company, or (ii) the Board of Directors or any committee thereof proposes to seek the resignation of Exxx Xxxxxxxxx or Pxxxx Xxxxxxxxx from the Board of Directors or communicates an intent not to nominate them for re-election as members of the Board of Directors, (A) initiate any stockholder proposal, or except in any way participate, directly your capacity as a director or indirectlyofficer of, in each case only if expressly directed to do so by the Company’s board of directors, the Company with respect to any financing for annual or special meeting called by the purchase Board of two percent Directors, the convening of a stockholders’ meeting of or involving the Company or any direct or indirect subsidiary thereof; or (2%B) solicit proxies (as such terms are defined in Rule 14a-1 under the Exchange Act), whether or more not such solicitation is exempt pursuant to Rule 14a-2 under the Exchange Act, with respect to any matter, except in your capacity as an officer or director of the Company, in each case only if expressly directed to do so by the Company’s board of directors, otherwise seek to influence, advise or direct the vote of, holders of any voting securities shares of capital stock of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%in each case, whether currently or upon the occurrence of any contingency) such capital stock, or make any communication exempted from the definition of solicitation by Rule 14a-1(I)(2)(iv) under the Exchange Act; (d) other than discussions, negotiations, agreements, arrangements or understandings among yourselves and your Representatives with respect to the Possible Transaction in compliance with this Agreement, enter into any discussions, negotiations, agreements, arrangements or understandings with any other person with respect to any matter described in the foregoing clauses (a) through (c) or more form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) to vote, acquire or dispose of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
subsidiaries; or (vie) other than as expressly permitted by this Agreement (x) make any public disclosure, or (y) take any action that could reasonably be expected to require you or the Company to make a public disclosure, with respect to any of the matters set forth in this Agreement. Notwithstanding anything in this Paragraph 7 to the contrary, you may (1) unless otherwise actrequested by the Special Committee, alone or in concert enter into discussions with othersthe Special Committee and its Representatives to explore a Possible Transaction, to seek to propose and (2) make requests (but only privately to the Company and not publicly) for amendments, waivers, consents under or agreements not to enforce clauses (a) through (c) of this Paragraph 7 and may make proposals or offers (but only privately to the Company not publicly) regarding the transactions contemplated by clauses (a) through (c) of this Paragraph 7, in each case under this clause (2), at any time after a Fundamental Change Event (as defined below). A “Fundamental Change Event” means the Company has after the date of this Agreement entered into a definitive written agreement providing for (i) any acquisition of 30% or more of the voting securities of the Company by any person or group, (ii) any acquisition of a majority of the consolidated assets of the Company and its shareholders subsidiaries by any amalgamationperson or group, merger, business combination, or (iii) any tender or exchange offer, merger or other business combination or any recapitalization, restructuring, recapitalizationliquidation, liquidation of dissolution or other extraordinary transaction to (provided that, in the case of any transaction covered by the foregoing clause (iii), immediately following such transaction, any person, other than you or with your controlled affiliates (or the Company direct or otherwise seekindirect shareholders of such person), alone or in concert with others, to control, change or influence will beneficially own a majority of the management, board of directors or policies outstanding voting power of the Company or nominate any Person as the surviving parent entity in such transaction). For purposes of this Paragraph 7, the following will be deemed to be an acquisition of beneficial ownership of securities: (1) establishing or increasing a director who is not nominated by the then incumbent directorscall equivalent position, or propose any matter liquidating or decreasing a put equivalent position, with respect to be voted upon by such securities within the shareholders meaning of Section 16 of the Company;
Exchange Act; or (vii2) make entering into any request swap or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, other arrangement that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result results in the Company having to make a public announcement regarding acquisition of any of the matters referred economic consequences of ownership of such securities, whether such transaction is to be settled by delivery of such securities, in clauses (i) through (vii) cash or otherwise. For purposes of Section 2.3(a)this Paragraph 7, any acquisition of beneficial ownership of securities shall not include an acquisition pursuant to any stock split, reverse stock split, recapitalization, reclassification of shares, or announce an intention to dosimilar transaction, or enter into any arrangement or understanding or discussions with others to do, any of in each case undertaken by the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)Company.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Nondisclosure Confidentiality Agreement (Nordstrom Erik B), Nondisclosure Confidentiality Agreement (Nordstrom Erik B)
Standstill. (a) Until During the later of (x) the three (3)-year anniversary of the Closing and (y) period commencing on the date on which no nominee designated by the Majority Approved Holders serves of this Agreement and ending on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)date of termination of this Agreement, each Shareholder Bandera Party agrees that, without the prior approval written consent of the BoardCompany, such Shareholder which consent shall have been specifically expressed in a written resolution adopted by a majority vote of all Board members other than the Bandera Directors, it will not, directly or indirectlyand will cause each of its Affiliates, Associates (as such terms are defined in Section 12), officers, agents and other Persons acting on its behalf not to:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone whether by purchase, tender or in concert with othersexchange offer, by purchase or otherwise, two percent (2%) or more through the acquisition of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) control of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote another Person (as such terms are used term is defined in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act12), whether subject toby joining a partnership, or exempt from the federal proxy ruleslimited partnership, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication syndicate or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act with respect to any voting securities of 1934, as amended (the Company;
(iv) acquire“Exchange Act”)), offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, any Voting Securities (ias such term is defined in Section 12), or otherwise become the beneficial owner (as such term is defined in Section 12) of any Voting Securities; provided, that no such acquisition shall be deemed to occur solely due to a stock split, reverse stock split, stock dividend, cancellation or repurchase of Voting Securities, reclassification, reorganization or other transaction affecting the assets, tangible or intangible, of the Company or any of its Affiliates or Voting Securities generally.
(ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangeengage, or in any way participate, directly or indirectly, in any financing “solicitation” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) 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 in any manner other than that recommended by a majority of the Board; initiate, propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) stockholders of the Company for the purchase approval of two percent stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; induce or attempt to induce any other Person to initiate any such stockholder proposal; or otherwise communicate or seek to communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act; provided, that this Section 4(b)(ii) shall not prohibit any Bandera Party from (2%A) or more voting, in such manner as it may determine in its sole discretion, any of any the Voting Securities reported as being beneficially owned by Bandera Partners on the Bandera 13D; provided, however, this subparagraph (A) shall only be applicable if the Bandera Party has been advised in writing by its outside counsel that voting securities such Voting Securities based upon the recommendation of the Board would breach a fiduciary duty owed to its investors, (B) communicating with the Company or any securities convertible into officer or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets director of the Company, except for such assets as are then being offered for sale by the Company in a non-public manner or (C) communicating with any Person who is an investor in any of its Affiliatesthe Bandera Parties in a non-public manner;
(viiii) otherwise actform, alone join or in concert any way participate in any “group” (within the meaning of Rule 13d-5 of Regulation 13D-G under the Exchange Act) with othersrespect to any Voting Securities with any Person not identified in the Bandera 13D;
(iv) 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, to except with a Bandera Party or as expressly set forth in this Agreement;
(v) seek to propose have called, or cause to the Company or be called, any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies meeting of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders stockholders of the Company;
(viivi) make any public demand to inspect the books and records of the Company, including pursuant to any statutory right that the Bandera Parties may have;
(vii) enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing, or make any investment in, any other Person that, to the best knowledge of the Bandera Parties at the time such investment is made, engages, or offers or proposes to engage, in any of the foregoing;
(viii) make any proposal (including the public disclosure or discussion of any proposal) or statement regarding any of the foregoing, or publicly disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing, or make or publicly disclose any request or proposal to amend, waive or terminate any provision of Section 2.3(a)this Agreement; provided, that this clause Section 4(b)(viii) shall not prohibit a Shareholder any Bandera Party from making a confidential request communicating with the Company or proposal to the Chief Executive Officer any officer or Chairman of the Board director of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 non-public disclosure thereofmanner; or
(viiiix) take take, or cause or induce others to take, any action that might result in the Company having to make a public announcement regarding inconsistent with any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing in Section 2.3(a) will limit During the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 period commencing on the date of this Agreement and ending on the date of the Series A Certificate) or otherwise exercise rights 2009 Annual Meeting, each Bandera Party agrees that, without the prior written consent of the Company, which consent shall have been specifically expressed in a written resolution adopted by a majority vote of all Board members, it will not, and will cause each of its Common Shares Affiliates, Associates, officers, agents and other Persons acting on its behalf not to:
(i) directly or Series A Preference Shares indirectly enter into any agreement, arrangement, understanding or the ability contract (whether written or oral) with any other stockholder or director of the Shareholders’ director designee elected Company with respect to the Board pursuant to Section 1.1 to vote Company, the Common Stock or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member other securities of the BoardCompany, other than the terms set forth in this Agreement;
(ii) enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing, or make any investment in, any other Person that, to the best knowledge of the Bandera Parties at the time such investment is made, engages, or offers or proposes to engage, in any of the foregoing; or
(iii) take, or cause or induce others to take, any action inconsistent with any of the foregoing.
Appears in 2 contracts
Samples: Nomination Agreement (Peerless Systems Corp), Nomination Agreement (Bandera Partners LLC)
Standstill. (a) Until For so long as the later Stockholders or any of (x) their successors or assigns hold the three (3)-year anniversary shares of the Closing Common Stock, the Parent Stockholder and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (its wholly owned or have irrevocably waived their right), each Shareholder agrees thatcontrolled subsidiaries shall not, without the prior approval written consent of the Board, such Shareholder will not, directly or indirectlyCompany:
(ia) 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 or otherwise, two percent (2%) or more any capital stock of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares Company or direct or indirect rights, warrants or options rights to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of acquire any voting securities capital stock of the Company, excluding or any Common Shares or other securities acquired pursuant to a conversion assets of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant any subsidiary or division of the Company or of any such successor or controlling person, if such acquisition would cause the Stockholders’ ownership interest in the Common Stock to exceed, (i) prior to and including the Transaction Documents date that is six months following (x) the closing of the Tender Offer or (y) if the Stockholders withdraw or decline to close the Tender Offer, the withdrawal or expiration of the Tender Offer (such date being, the “Six Month Anniversary Date”), 19.9% of the Company’s outstanding Common Stock as measured immediately after the Company’s issuance of the Consideration Shares and the Top-up Shares (each as defined in the Investment Purchase Agreement); provided that in no event shall the sum of the Consideration Shares and the Top-up Shares exceed 19.9% of the Company’s outstanding Common Stock as measured immediately prior to the commencement of the Tender Offer, including pursuant to Section 2.1 and (ii) after the Six Month Anniversary Date, twenty percent (20.0%) of this Agreementthe Company’s outstanding Common Stock as measured as of the date of any such acquisition;
(iib) except as otherwise expressly provided in this Agreement, make, or in any way participate inparticipate, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange ActCommission), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person person or entity (other than Parent Stockholder and its subsidiaries) with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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 capital stock of the Company;
(ivc) acquiremake any public announcement with respect to, or submit a proposal for or offer of (with or without conditions) (including to acquire the Board of Directors of the Company), any extraordinary transaction involving the Company or agree any of its securities or assets, except as provided herein;
(d) form or join a 13D Group (other than any such group consisting solely of Parent Stockholder and its subsidiaries) in connection with any of the foregoing;
(e) otherwise act or seek to acquirecontrol the management or Board or policies of the Company, directly or indirectly, whether alone or in concert with others, by purchase, exchange or otherwise, ;
(if) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any of the assets, tangible or intangible, of events described in clauses (a) through (e) above;
(g) request the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participaterepresentatives, directly or indirectly, in any financing for the purchase of two percent (2%) to amend or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 would require public disclosure thereofdisclosure; or
(viiih) direct or instruct any of their respective subsidiaries, representatives or affiliates to take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)such action.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Stockholders Rights Agreement, Stockholders Rights Agreement (WPP PLC)
Standstill. (a) Until Each Investor agrees that during the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees thatStandstill Period, without the prior written approval of the Company or the Company Board, or as otherwise expressly permitted or contemplated by this Agreement or the Certificate of Designation, such Shareholder Investor will not, directly or indirectlynot and will cause its respective controlled Affiliates not to:
3.1.1 acquire beneficial ownership of any securities (iincluding in derivative form) acquireof the Company or make any tender, exchange or other offer for such an acquisition, excluding, in the case of each Investor, acquisition of (a) the Preferred Shares or propose the Conversion Shares issuable upon conversion thereof, (b) any Capital Stock or other Equity Securities of the Company pursuant to acquireor in accordance with the Certificate of Designations (which shall include any shares of Capital Stock, solicit fractional or otherwise, issued as dividends on the Preferred Shares), (c) subject to the prior consent of the Company (which consent shall be deemed to have been granted if the Company does not affirmatively advise the applicable Investor that the Company withholds such consent within one Trading Day after receiving such request for consent, and which consent may only be withheld if the Company reasonably believes such acquisition of Capital Stock or other Equity Interests of the Company will be treated as an offer “ownership change” as defined in Section 382 of the Code), any Capital Stock or other Equity Interests of the Company acquired by the Investor or its controlled Affiliates so long as the total beneficial ownership of the Investor and its controlled Affiliates in the Company’s voting securities, after giving effect to sell such acquisition, would not exceed 25% of the Company’s total voting power (assuming the conversion of the Preferred Shares) at such time and (d) any securities received from the Company by way of dividend or agree to acquire, distribution;
3.1.2 directly or indirectly, alone (i) seek to have called any meeting of the stockholders of the Company other than a meeting at which the Stockholder Approval is sought to be obtained, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board or cause to be voted in concert favor of such person for election to the Board any Shares of Then Outstanding Common Stock;
3.1.3 directly or indirectly, encourage or support a tender, exchange or other offer or proposal by any other Person or group the consummation of which would result in a Change of Control (other than as a seller on the same terms as the other holders of the Company’s Equity Securities) (an “Business Combination”); provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company wherein a majority of the Board recommend that stockholders accept any such Business Combination, the Investors and their Affiliates shall not be prohibited from taking any of the actions otherwise prohibited by this Section 3.1.3 in connection with otherssuch Business Combination for so long as the Board maintains and does not withdraw such recommendation;
3.1.4 directly or indirectly, by purchase solicit proxies or otherwise, two percent (2%) consents or more of any direct or indirect “beneficial ownership” become a participant in a solicitation (as such terms are defined in Rule 13d-3 and Rule 13d-5 Regulation 14A under the Exchange Act) in opposition to the recommendation of Common Shares, a majority of the Board with respect to any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquirematter, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, knowingly seek to advise or influence any Person, with respect to voting of any Shares of Then Outstanding Common Stock;
3.1.5 deposit any Shares of Then Outstanding Common Stock in a voting trust or subject any manner whatsoever Shares of Then Outstanding Common Stock to any Person arrangement or agreement with respect to the voting of any voting securities such Shares of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeThen Outstanding Common Stock;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, 3.1.6 propose (i) any of the assetsmerger, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, mergerconsolidation, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders purchase of the Company;
(vii) make any request ’s assets or proposal to amendbusinesses, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of similar transaction involving the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Securities Purchase Agreement (GTT Communications, Inc.), Securities Purchase Agreement (GTT Communications, Inc.)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will Each Holder shall not, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersany other Person (i) initiate, by purchase propose, cause, participate in, vote in favor of or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant consent to a conversion Sale of the Series A Preference Shares, bonus issue, dividend or distributions PRGX unless such Sale of PRGX has been approved and recommended by the Company or otherwise acquired pursuant a majority of PRGX's Board of Directors (which recommendation is not subsequently withdrawn prior to the Transaction Documents (as defined in the Investment Agreementconsummation of such Sale of PRGX), including pursuant to Section 2.1 of this Agreement;
; (ii) except as otherwise expressly provided in this Agreement, initiate or propose any Holder proposal or action or make, or in any way participate in, directly in or indirectly, alone or in concert with othersencourage, any “"solicitation” " of “"proxies” to vote " (as such those terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act), whether subject to) to vote or written consents, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of or consenting with respect to PRGX Common Stock, or become a "participant" in a "solicitation" (as those terms are used in Regulation 14A under the Exchange Act) in opposition to a recommendation of PRGX's Board of Directors with respect to any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
matter; (iii) except as otherwise expressly provided in this Agreement, 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 Act) for the purpose of acquiring, holding, voting or effecting the Transfer of any voting securities of the Company;
PRGX Common Stock; or (iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having require PRGX to make a public announcement regarding any a Sale of PRGX unless such Sale of PRGX has been approved and recommended by a majority of PRGX's Board of Directors (which recommendation is not subsequently withdrawn prior to consummation of such Sale of PRGX). In the matters referred event a Holder is an officer or director of PRGX, nothing in the foregoing sentence shall be construed to in clauses (i) through (vii) of Section 2.3(a), or announce an intention obligate such Holder to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his any manner inconsistent with or her capacity which may conflict with such Holder's fiduciary duties as a member an officer or director of the BoardPRGX.
Appears in 2 contracts
Samples: Shareholder Agreement (Profit Recovery Group International Inc), Shareholder Agreement (PRG Schultz International Inc)
Standstill. Each of the Seller, BCC and Xx. Xxxxxxx agrees that, during the period beginning on the date hereof and ending on the fourth (a4th) Until the later of (x) the three (3)-year anniversary of the Closing and date hereof (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right“Restricted Period”), each Shareholder agrees that, without the prior approval of the Board, such Shareholder it or he will not, directly and it or indirectlyhe will cause each of such person’s Affiliates (as defined in Rule 12b-2 (“Rule 12b-2”) promulgated by the Securities and Exchange Commission (the “SEC”) under the Exchange Act), including, without limitation, agents or other persons acting on its or his behalf not to, and will use commercially reasonable efforts to cause its or his respective Associates (as defined in Rule 12b-2) not to:
(ia) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, beneficial ownership of any (i) interests in any of the assets, tangible or intangible, of the Company or any of its Affiliates Purchaser’s indebtedness or (ii) direct or indirect rights, warrants or options to acquire any assets capital stock of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its AffiliatesPurchaser;
(vb) arrangeinduce or encourage any person to submit 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 at a meeting of the shareholders of the Purchaser;
(c) advise, encourage or influence any person with respect to voting any shares of capital stock of the Purchaser with respect to any matter;
(d) seek to control or influence the governance or policies of the Purchaser;
(e) 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 participateassist or facilitate any other person to effect or seek, directly offer or indirectly, propose (whether publicly or otherwise) to effect or participate in (i) any financing for the purchase of two percent (2%) or more acquisition of any voting securities material assets or businesses of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company Purchaser or any of its Affiliates;
subsidiaries, (viii) otherwise actany tender offer or exchange offer, alone merger, acquisition or in concert with others, to seek to propose to other business combination involving the Company Purchaser or any of its shareholders subsidiaries or (iii) any amalgamation, merger, business combination, tender or exchange offerrecapitalization, restructuring, recapitalizationliquidation, liquidation of dissolution or other extraordinary transaction with respect to the Purchaser or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board any of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Companyits subsidiaries;
(viif) make any request request, submit any proposal or proposal disclose any intent to amendseek or obtain any waiver, waive consent under, or terminate any amendment of, any provision of Section 2.3(a); providedthis Agreement other than through non-public communications with the Purchaser that would not be reasonably determined to trigger public disclosure obligations for any Party or any Affiliate of any Party;
(g) enter into any arrangements, that this clause shall not prohibit a Shareholder from making a confidential request understandings or proposal agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person for the purpose of engaging, or offering or proposing to the Chief Executive Officer or Chairman engage, in any of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofforegoing; or
(viiih) take or cause or induce others to take any action that might result in the Company having to make a public announcement regarding inconsistent with any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Air T Inc), Securities Purchase Agreement (Biglari Capital Corp.)
Standstill. (a) Until the later of (x) the three (3)-year anniversary Each member of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Potomac Group agrees that, without during the prior approval Covered Period (unless specifically requested in writing by the Company, acting through a resolution of a majority of the BoardCompany’s directors not including the Potomac Designees), it shall not, and shall cause each of its Affiliates or Associates (as such Shareholder will notterms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “Potomac Affiliates”) not to (except as expressly set forth in this Agreement), directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectlyin any manner, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;:
(iii) except as otherwise expressly provided in this Agreementmake, makeengage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote proxies (as such terms are used in the proxy rules of the SEC promulgated pursuant but without regard to Section 14 the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act), whether subject to) or consents to vote, or exempt from the federal proxy rules, seek to advise advise, encourage or influence in any manner whatsoever any Person person with respect to the voting of any voting securities of the Company or seek to propose to influenceany securities convertible or exchangeable into or exercisable for any such securities (collectively, advise, change or control the management, board of directors, policies, affairs or strategy “securities of the Company”) for the election of individuals to the Board or to approve stockholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company by way (as such terms are defined or used under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting) or make or be the proponent of any public communication stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or other communications to securityholders intended for such purposeotherwise);
(iiiii) except as otherwise expressly provided in this Agreement, form, join join, encourage, influence, advise or in any way participate in a “group” within the meaning of any Group (as such term is defined in Section 13(d)(3) of the Exchange Act Act) with any persons who are not Potomac Affiliates with respect to any voting securities of the CompanyCompany or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof;
(iviii) 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 (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, (i) any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in the Potomac Group (together with the Potomac Affiliates) owning, controlling or otherwise having any beneficial or other ownership interest in more than 10% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent the Potomac Group and the Potomac Affiliates, collectively, exceed the ownership limit under this paragraph as the result of a share repurchase or similar Company actions that reduces the number of outstanding shares of Common Stock;
(iv) sell, transfer, offer or agree to sell or transfer directly or indirectly, through swap or hedging transactions (including any cash settled position), the securities of the Company or any rights decoupled from the underlying securities of the Company held by the Potomac Group or any Potomac Affiliate;
(v) sell, transfer, offer or agree to sell or transfer directly or indirectly, the securities of the Company to any person or entity not a Potomac Affiliate (a “Third Party”), that would, to the knowledge of any member of the Potomac Group after reasonable inquiry, 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 five percent (5%) or more of the shares of Common Stock outstanding at such time or increasing a Third Party’s beneficial or other ownership interest if such Third Party’s beneficial or other ownership interest is already five percent (5%) or more of the shares of Common Stock outstanding at such time, except in a transaction approved by the Board, other than through an open-market purchase and sale transaction with a counterparty anonymous to the Potomac Group and its representatives;
(vi) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, tangible liquidation, dissolution or intangible, of other extraordinary transaction involving the Company or any of its Affiliates subsidiaries or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company joint ventures or any of its Affiliatestheir respective securities (each, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangean “Extraordinary Transaction”), or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal public statement with respect to amend, waive or terminate any provision of Section 2.3(a)an Extraordinary Transaction; provided, however, that this clause shall not prohibit preclude the tender by the Potomac Group or a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman Potomac Affiliate of the Board any securities of the Company into any tender or exchange offer or vote with respect to any Extraordinary Transaction approved by the Board;
(vii) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any hedging, put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index);
(viii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) seek representation, on or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from stockholders or otherwise act or seek to act by written consent, (E) conduct a referendum of stockholders, or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(ix) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors, the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking an 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) 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;
(x) in any way disparage (or cause to be disparaged), attempt to discredit, make derogatory statements with respect to, or otherwise call into disrepute, the Company or the Company’s subsidiaries, affiliates, successors, assigns, officers (including any current, future or former officer of the Company or the Company’s subsidiaries), directors (including any current, future or former director of the Company or the Company’s subsidiaries), employees, stockholders, agents, attorneys or representatives, or any of the Company’s or the Company’s subsidiaries’ practices, procedures, business operations, products or services, in any manner;
(xi) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xii) enter into any negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(xiii) publicly request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 2.32(a) shall not be deemed to prohibit the Potomac Group or its directors, which officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with the Company may accept Company’s directors, officers or reject in its sole discretion, advisors so long as such communications are not intended to, and would not reasonably be expected to, require any such request is made in a manner that does not require public disclosure thereof; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)such communications.
(b) Each member of the Potomac Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any Potomac Affiliate, to be present for quorum purposes and to be voted, at the Company’s annual and special stockholder meetings and at any adjournments or postponements thereof, and further agrees that at the 2014 annual stockholder meeting they shall vote in favor of (i) all directors nominated by the Board for election at such meeting (including the Potomac Designees as applicable) and (ii) in accordance with the Board’s recommendation with respect to any proposal regarding the ratification of the Company’s current independent registered public accounting firm.
(c) Nothing in this Section 2.3(a) will 2 shall limit the Shareholderany actions that may be taken by a Potomac Designee acting solely in such Potomac Designee’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member director of the BoardCompany consistent with such Potomac Designee’s fiduciary duties as a director of the Company and such Potomac Designee’s obligations and representations under the other Sections of this Agreement.
Appears in 2 contracts
Samples: Nomination and Standstill Agreement (Meru Networks Inc), Nomination and Standstill Agreement (Potomac Capital Partners Iii, L.P.)
Standstill. The Principal Stockholder agrees that, (ai) Until from the later of date hereof until the Closing Date and (xii) from and after the three (3)-year Closing Date for so long as he shall be a Restricted Stockholder up to and including the tenth anniversary of the Closing date of this Agreement, he shall not, and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled shall use his best efforts to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees thatcause his Affiliates not to, without the prior approval written consent of the Boardboard of directors of Acquiror, such Shareholder will not, directly or indirectly:
(iA) in any manner acquire, offer agree to acquire or propose to acquire, solicit an offer to sell or agree make any proposal to acquire, directly or indirectly, alone any Equity Securities of Acquiror or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants rights or options to acquire, or securities convertible into or exchangeable for, two percent acquire such Equity Securities (2%) or more other than the shares of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions Acquiror Stock received by the Company or otherwise acquired pursuant to the Transaction Documents (as defined him in the Investment AgreementMerger and other than options granted to directors of Acquiror), including pursuant (B) propose to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate inenter into, directly or indirectly, alone a merger or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, other business combination involving Acquiror or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) acquire, offer to acquire or agree to acquirepurchase, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwisea material portion of the assets of Acquiror, (iC) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangemake, or in any way participate, directly or indirectly, in, any "solicitation" of "proxies" (as such terms are used in Regulation 14A under the Exchange Act) to vote or consent or seek to advise or influence any Person with respect to the voting of, or granting of a consent with respect to, any Voting Securities of Acquiror, (D) form, join or in any financing way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) for the purchase purpose of two percent (2%) acquiring, holding voting or more disposing of any voting securities Equity Securities of the Company or any securities convertible into or exchangeable or exercisable for two percent Acquiror, (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(viE) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change control or influence in any public manner or public forum the management, board of directors management or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a)Acquiror; provided, however, that this clause the foregoing shall not prohibit a Shareholder from making a confidential request limit the ability to vote any shares of any Equity Securities of Acquiror, (F) disclose any intention, plan or proposal to arrangement inconsistent with the Chief Executive Officer foregoing, (G) advise, assist (including by knowingly providing or Chairman arranging financing for that purpose) or encourage any other Person in connection with any of the Board of the Company seeking an amendment foregoing or waiver of the provisions of this Section 2.3, 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; or
(viiiH) take any action that (other than in exercising his registration rights under the Registration Rights Agreement) which might result in the Company having require Acquiror to make a public announcement regarding the possibility of a transaction between the Principal Stockholder and Acquiror (including any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(atheir respective Affiliates).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Stockholder Agreement (Dauten Kent P), Stockholder Agreement (Iron Mountain Inc /De)
Standstill. (a) Until The Investor agrees that during the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees thatStandstill Period, without the prior written approval of the Company or the Company Board, such Shareholder or as otherwise expressly permitted or contemplated by this Agreement, the Investor will not, directly or indirectlynot and will cause its controlled Affiliates not to:
3.1.1 acquire beneficial ownership of any securities (iincluding in derivative form) acquireof the Company or make any tender, exchange or other offer for such an acquisition, excluding, in the case of the Investor, acquisition of (a) the Common Shares, (b) subject to the prior consent of the Company (which consent shall be deemed to have been granted if the Company does not affirmatively advise the applicable Investor that the Company withholds such consent within one Trading Day after receiving such request for consent, and which consent may only be withheld if the Company reasonably believes such acquisition of Capital Stock or propose other Equity Interests of the Company will be treated as an “ownership change” as defined in Section 382 of the Code), any Capital Stock or other Equity Interests of the Company acquired by the Investor or its controlled Affiliates so long as the total beneficial ownership of the Investor and its controlled Affiliates in the Company’s voting securities, after giving effect to acquiresuch acquisition, solicit an offer to sell would not exceed 25% of the Company’s total voting power at such time and (c) any securities received from the Company by way of dividend or agree to acquire, distribution;
3.1.2 directly or indirectly, alone (a) seek to have called any meeting of the stockholders of the Company or (b) propose or nominate for election to the Company Board any person whose nomination has not been approved by a majority of the Company Board or cause to be voted in concert favor of such person for election to the Company Board any Shares of Then Outstanding Common Stock;
3.1.3 directly or indirectly, encourage or support a tender, exchange or other offer or proposal by any other Person or group the consummation of which would result in a Change of Control (other than as a seller on the same terms as the other holders of the Company’s Equity Securities) (an “Business Combination”); provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company wherein a majority of the Company Board recommend that stockholders accept any such Business Combination, the Investor and its Affiliates shall not be prohibited from taking any of the actions otherwise prohibited by this Section 3.1.3 in connection with otherssuch Business Combination for so long as the Company Board maintains and does not withdraw such recommendation;
3.1.4 directly or indirectly, by purchase solicit proxies or otherwise, two percent (2%) consents or more of any direct or indirect “beneficial ownership” become a participant in a solicitation (as such terms are defined in Rule 13d-3 and Rule 13d-5 Regulation 14A under the Exchange Act) in opposition to the recommendation of Common Shares, a majority of the Company Board with respect to any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquirematter, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, knowingly seek to advise or influence any Person, with respect to voting of any Shares of Then Outstanding Common Stock;
3.1.5 deposit any Shares of Then Outstanding Common Stock in a voting trust or subject any manner whatsoever Shares of Then Outstanding Common Stock to any Person arrangement or agreement with respect to the voting of such Shares of Then Outstanding Common Stock;
3.1.6 propose (a) any voting securities merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, or similar transaction involving the Company or seek to propose to influence(b) any recapitalization, adviserestructuring, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication liquidation or other communications extraordinary transaction with respect to securityholders intended for such purposethe Company;
(iii) except as otherwise expressly provided 3.1.7 act in this Agreementconcert with any third party to take any action in the preceding clauses 3.1.1 through 3.1.6, or form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” within the meaning of Section 13(d)(3) of the Exchange Act Act, other than any actions taken by the Investor related to negotiating, entering into and exercising the rights under this Agreement, the Securities Purchase Agreement or any document entered into in connection with respect to any voting securities of the Companyforegoing;
3.1.8 enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in the preceding clauses 3.1.1 through 3.1.7; or
3.1.9 request or propose to the Company Board, any member(s) thereof or any officer of the Company that the Company amend, waive, or consider the amendment or waiver of, any provisions set forth in this Section 3.1 (iv) acquireincluding this clause 3.1.9); provided, offer to acquire or agree to acquirehowever, directly or indirectly, alone or that nothing in concert with others, by purchase, exchange or otherwise, this Section 3.1 shall limit (i) the rights available (including the enforcement of such rights) to the Investor and its Affiliates under this Agreement, the Acquisition Agreement (as defined in the Securities Purchase Agreement), the Securities Purchase Agreement or any document entered into in connection with any of the assetsforegoing, tangible or intangible, (ii) the ability of the Company Investor and its permitted transferees’ ability to make a pledge of securities (subject to Section 2.1) or (iii) the Investor or any of its Affiliates or their respective directors, executive officers, partners, principals, employees or managing members or agents (iiacting in such capacity) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of from communicating privately with the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent ’s directors, officers or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, which the Company may accept or reject in its sole discretion, advisors so long as such communications are not intended to, and would not reasonably be expected to, require any such request is made in a manner that does not require public disclosure thereof; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)such communications.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Investor Rights Agreement (GTT Communications, Inc.), Securities Purchase Agreement (GTT Communications, Inc.)
Standstill. (a) Until During the later of (x) Standstill Period, the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Raging Capital Group, each Shareholder agrees thatMember, each Raging Capital Designee and each of their respective Affiliates shall not, without the prior approval written consent of the Board, such Shareholder will not, directly or indirectlyCompany:
(ia) own, acquire, announce an intention to 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 or otherwise, two percent (2%i) or more Beneficial Ownership of any direct or indirect “beneficial ownership” Common Stock (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Actexcluding (x) 18,888 shares of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities Stock Beneficially Owned by Xxxxxxx X. Xxxxx as of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 date of this Agreement, (y) 18,667 shares of Common Stock Beneficially Owned by Xxxxx X. Xxxxx as of the date of this Agreement and (z) shares of Common Stock underlying New Convertible Notes Beneficially Owned by the Raging Capital Group as of the date of this Agreement) or (ii) Beneficial Ownership of any Senior Notes, Convertible Notes, New Convertible Notes or any other interests in the Company’s indebtedness, now in existence or which may be created in the future (excluding $27,500,000 principal amount of Senior Notes and $2,940,000 principal amount of New Convertible Notes Beneficially Owned by the Raging Capital Group as of the date of this Agreement);
(iib) except as otherwise expressly provided in this Agreement, make, or in any way participate inparticipate, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange ActSEC), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person person with respect to the voting of of, any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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 Voting Stock of the Company;
(ivc) acquireseparately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent, submit a recommendation of, suggestion to evaluate or pursue, or any proposal for, offer of, or comment on (with or without conditions) (including to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (ithe Board) any Extraordinary Transaction. “Extraordinary Transaction” means any of the assets, tangible following involving the Company or intangible, any of its Subsidiaries or its or their securities or a material amount of the assets or businesses of the Company or any of its Affiliates Subsidiaries: any tender offer or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamationexchange offer, merger, acquisition, divestiture, business combination, tender or exchange offerreorganization, restructuring, recapitalization, liquidation sale or acquisition of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to controlmaterial assets, change in publicly-traded status or influence the managementexchange, board of directors liquidation or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Companydissolution;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Settlement Agreement (Raging Capital Management, LLC), Stock Purchase Agreement (Wb & Co)
Standstill. (a) Until During the later of (x) period commencing with the three (3)-year Effective Date and ending on the third anniversary of the Closing and Effective Date (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right“Standstill Period”), each Shareholder agrees that, without the prior approval of the Board, such Shareholder Executive will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more and will cause each of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 his Affiliates and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject Associates not to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise actmanner, alone or in concert with othersothers (in each case, except as approved by a resolution of the Board):
(a) acquire ownership (beneficial or otherwise) of more than 19 million shares of Common Stock (together with his Affiliates and Associates, in the aggregate during the Standstill Period) or rights or options to seek to acquire such ownership;
(b) propose to the Company or effect any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuringmerger, consolidation, business combination, recapitalization, restructuring, liquidation of or other extraordinary transaction with respect to or with the Company or otherwise seek, alone its subsidiaries;
(c) (i) make or participate in concert any “solicitation” (as defined under the Exchange Act) of proxies or consents with others, respect to control, change the election or influence the management, board removal of directors or policies 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 representation on the Board, or nominate or recommend the nomination of any candidate to the Board, or the removal of any member of the Company Board; or nominate (iii) make any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Companystockholder proposal;
(viid) make publicly disclose (whether via social media platform or otherwise) any request intention, plan or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to arrangement inconsistent with the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofforegoing; or
(viiie) take knowingly encourage or assist any action that might result other Person in the Company having to make a public announcement regarding undertaking any of the matters referred to 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 clauses (i) through (vii) of Section 2.3(a), person or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any by proxy at each meeting of the actions restricted Company’s stockholders and vote all Voting Securities beneficially owned by the Executive or prohibited under clauses such Affiliate or Associate (ior which the Executive or such Affiliate or Associate has the right or ability to vote) through at such meeting (viia) in favor of Section 2.3(a).
the slate of directors recommended by the Board and (b) Nothing in Section 2.3(a) will limit against the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 election of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ any nominee for director designee elected to not recommended and nominated by the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Boardfor election at such meeting.
Appears in 2 contracts
Samples: Separation Agreement (Nikola Corp), Severance Agreement
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) From the date on which no nominee designated by of this Agreement until the Majority Approved Holders serves on Expiration Date or until such earlier time as the Board and the Shareholders are no longer entitled to designate any directors for nomination restrictions in this Section 10 terminate pursuant to Section 1.1 the terms of this Agreement (or have irrevocably waived their rightsuch period, the “Restricted Period”), each Shareholder agrees that, without the prior approval member of the Board, such Shareholder will Investor Group shall not, directly or indirectly:
and shall cause its Affiliates and Associates (icollectively, the “Restricted Persons”) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquirenot to, directly or indirectly, alone absent prior express written invitation or authorization by the Board:
a. engage in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownershipsolicitation” (as such term is defined under the Securities Exchange Act of 1934, as amended and the rules promulgated thereunder (the “Exchange Act”)) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such term is defined in Rule 13d-3 and Rule 13d-5 Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of Common Shares, any securities convertible proxies or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreementconsents;
(ii) except as otherwise expressly provided in this Agreementb. knowingly encourage, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence any other Person or knowingly assist any Person in any manner whatsoever so encouraging, advising or influencing any Person with respect to the voting giving or withholding of any voting securities of the Company or seek to propose to influenceproxy, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication consent or other communications authority to securityholders intended for vote (other than such purposeencouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter or as otherwise permitted by this Agreement);
(iii) except as otherwise expressly provided in this Agreement, c. form, join or act in concert with any way participate in partnership, limited partnership, syndicate or other group, including a “group” within the meaning of as defined pursuant to Section 13(d)(313(d) of the Exchange Act and the rules promulgated thereunder, with any entity or person unaffiliated with the Investor Group and with respect to any voting securities of the CompanyVoting Securities;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, d. make or in any way participate, directly or indirectly, in any financing for the purchase tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of two percent (2%) a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by extraordinary transaction involving the Company or any of its Affiliates;
subsidiaries (vieach, an “Extraordinary Transaction”) otherwise act, alone or in concert with others, to seek to propose to (it being understood that the Company foregoing shall not restrict the Investor Group or any of its shareholders any amalgamationAffiliates or Associates from tendering (or failing to tender) shares, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of receiving payment or other transaction to consideration for shares, voting its shares “for” or with the Company “against” any Extraordinary Transaction, 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);
(i) seek, 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 controlthe Board (except as otherwise permitted in this Agreement), (ii) seek, alone or in concert with others, or knowingly encourage any Person to seek, the removal of any member of the Board, (iii) request that, or knowingly encourage any Person to request that, the Company call any meeting of the Company’s stockholders, (iv) present any matter at any meeting of the Company’s stockholders, or (v) conduct, or knowingly encourage any Person to conduct, a referendum of the Company’s stockholders; provided, however, that nothing in this Agreement shall prevent any member of the Investor Group or any of their Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2023 Annual Meeting so long as such actions do not create a public disclosure obligation for the Investor Group or the Company and are undertaken on a basis reasonably designed to be confidential;
f. make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
g. make any request for stock list materials or other books and records of the Company under the Delaware General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
h. except as set forth in this Agreement, make any public proposal with respect to (i) any change in the number or influence the management, board term of directors or policies the filling of any vacancies on the Board, (ii) any material change in the capitalization of the Company, (iii) any other material change in the Company’s management, business or corporate structure, or (iv) any waiver, amendment or modification to the Company’s Fourth Amended and Restated Certificate of Incorporation (as may be amended from time to time, the “Charter”) or Bylaws, or other actions which may impede the acquisition of control of the Company by any Person;
i. enter into any negotiations, agreements or nominate understandings with any Third Party to take any action that the Investor Group or any member thereof is prohibited from taking pursuant to this Section 10; j. institute, solicit, knowingly assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current, former or future directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this Section 10; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person as from (i) bringing litigation to enforce the provisions of this Agreement, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a director who is Restricted Person, (iii) bringing bona fide commercial disputes that do not nominated by relate to the then incumbent subject matter of this Agreement or (iv) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process (and the Company agrees that this Section 10(j) shall apply mutatis mutandis to the Company and its directors, or propose any matter officers and employees (in each case, acting in such capacity) and Affiliates with respect to be voted upon by the shareholders of Investor Group in connection with the Company;’s obligations set forth in the penultimate paragraph of this Section 10); or
(vii) k. make any public request or proposal submit any public proposal, directly or indirectly, to amendamend or waive the terms of this Agreement, waive in each case which would reasonably be expected to result in a public announcement of such request or terminate any provision of Section 2.3(a)proposal; provided, that the restrictions in this clause Section 10 shall terminate automatically upon the earliest of (i) any breach of a material right of the Investor Group under this Agreement by the Company (including, without limitation, a failure to appoint the New Director in accordance with Section 1) upon five (5) business days’ written notice by any of the members of the Investor Group to the Company if such breach has not been cured within such notice period, provided that the Investor Group is not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period, (ii) the Expiration Date, (iii) the announcement by the Company of a definitive agreement with respect to any Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities or all or substantially all of the Company’s assets, or (iv) the commencement of any tender or exchange offer (by a person other than a member of the Investor Group or its Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer. During the Restricted Period, the Company shall not prohibit a Shareholder from making a confidential request or proposal adopt and shall not propose the adoption of any amendment to the Chief Executive Officer Charter or Chairman Bylaws that would reasonably be expected to impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future annual meeting of stockholders of the Company, and nothing contained in this Section 10 shall prevent the Investor Group from (i) privately communicating with the Company or the Board regarding any matter, (ii) making any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a Third Party, (iii) communicating with stockholders of the Company seeking an amendment or waiver of the provisions of this Section 2.3, which the Company may accept or reject in its sole discretion, so long as any such request is made and others in a manner that does not require public disclosure thereof; or
otherwise violate this Section 10 or Section 11 or (viiiiv) take 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 might result has jurisdiction over the Investor Group. Nothing in this Agreement shall prevent (a) the Company having from responding to make a public announcement regarding any such Investor Group statements described in clause (ii) of the matters referred preceding sentence, subject to in clauses (i) through (vii) the obligations of the Parties under Section 2.3(a)11, or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing the Company or the Investor Group from making any factual statement as required by applicable legal process, subpoena, or legal requirement or as part of a response to a request for information from any governmental authority with jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of discretionary acts by the Investor Group or any of its Affiliates or by the Company or any of its Affiliates, as applicable). Furthermore, for the avoidance of doubt, nothing in Section 2.3(a) will limit this Agreement shall be deemed to restrict in any way the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 New Director in the exercise of his rights or fiduciary duties under applicable law as a director of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the BoardCompany.
Appears in 2 contracts
Samples: Cooperation Agreement (OptiNose, Inc.), Cooperation Agreement (OptiNose, Inc.)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Each Investor agrees that, without from the prior approval date of this Agreement until the expiration of the BoardStandstill Period, such Shareholder neither it nor any of its Affiliates or Associates or Family Members will, and it will not, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquirecause each of its Affiliates and Associates and Family Members not to, directly or indirectly, in any manner, 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 purchase the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise, two percent or any notice of nomination or other business for consideration, or nominate any candidate for election to the Board;
(2%b) engage, directly or more of indirectly, in any direct or indirect “beneficial ownershipsolicitation” (as defined in Rule 13d-3 and Rule 13d-5 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquirethe Board, or securities convertible into recommend or exchangeable for, two percent (2%) request or more of any voting securities of the Company, excluding any Common Shares induce or other securities acquired pursuant attempt to a conversion of the Series A Preference Shares, bonus issue, dividend induce or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise advise, encourage or influence in any manner whatsoever any Person other person with respect to the voting of any voting securities stock of the Company (including any withholding from voting) or seek grant a proxy with respect to propose to influence, advise, change or control the management, board voting of directors, policies, affairs or strategy any voting stock of the Company to any person other than to the Board or persons appointed as proxies by way of any public communication or other communications to securityholders intended for such purposethe Board;
(iiic) except as otherwise expressly provided in this Agreementseek to call, or to request the call of, a special meeting of the Company’s 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 CompanyCompany (other than a “group” that consists solely of all or some of the persons parties to this Agreement or any of their respective Affiliates or Associates);
(ivf) acquiredeposit any shares of voting stock of the Company in a voting trust or similar arrangement or subject any shares of voting stock of the Company to any voting agreement or pooling arrangement, offer other than any such voting trust, arrangement or agreement solely among the Investors and otherwise in accordance with this Agreement;
(g) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board not in violation of the terms of this Agreement;
(h) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board or the committees of the Board;
(i) acquire or agree agree, offer, seek or propose to acquire, directly or indirectlycause to be acquired, alone or in concert with others, by purchase, exchange or otherwise, ownership (iincluding beneficial ownership) of any of the assets, tangible assets or intangible, business of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants rights or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or business from any of its Affiliatesperson;
(vj) arrangeother than at the express written request of the Board, seek, propose, or in make any way participatestatement with respect to, directly or indirectlysolicit, in negotiate with, or provide any financing for the purchase of two percent (2%) or more of information to any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Companyperson with respect to, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, restructuringpurchase, 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, liquidation 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 or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders 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;
(viik) make 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 terminate waive any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.33, which the Company 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 thereofof 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
(viiin) take enter into any action that might result in the Company having to make a public announcement regarding negotiations, discussions, agreement, arrangement or understanding with any person concerning any of the matters referred foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Notwithstanding the foregoing, nothing in clauses 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) through (vii) 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 Associates of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected person subsequent to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member date of the Board.this Agreement;
Appears in 2 contracts
Samples: Nomination and Standstill Agreement (Hill International, Inc.), Nomination and Standstill Agreement (Hill International, Inc.)
Standstill. (a) Until In furtherance of the later transactions contemplated by the Merger Agreement and this Agreement and the substantial economic benefit to be conferred upon the parties thereto and hereto, during the period commencing on the date of an Initial Public Offering and terminating on the earliest to occur of (xi) the three (3)-year date that is the third anniversary of the Closing date of the Initial Public Offering and (yii) the date on which no nominee designated by that the Majority Approved Holders serves on the Board KKR Stockholders collectively cease to hold any Shares, WBA shall not (and the Shareholders are no longer entitled shall cause its controlled Affiliates to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their rightnot), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
: (i) acquireacquire or agree, offer offer, seek or propose to acquire, solicit an offer or cause to sell be acquired, ownership (including, but not limited to, any voting right or agree to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (ownership as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act)) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the CompanyIPO Corporation or any option, excluding any Common Shares forward contract, swap or other position with a value derived from voting securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant IPO Corporation (other than any broad index-based derivative that is not related to the Transaction Documents value of any such securities of the IPO Corporation) or conveying the right to acquire or vote securities of the IPO Corporation, or any ownership of any of the assets or businesses of the IPO Corporation, or any rights or options to acquire any such ownership (as defined in the Investment Agreementincluding from a third party), including pursuant to Section 2.1 of this Agreement;
; (ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, ) to vote or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
IPO Corporation; (iii) except as otherwise expressly provided in this Agreement, form, join join, or in any way communicate or associate with other security-holders or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to the IPO Corporation or any voting securities of the Company;
IPO Corporation; (iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participateparticipate in, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable into or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
IPO Corporation; (viv) otherwise act, whether alone or in concert with others, to seek to propose to the Company IPO Corporation or any of its shareholders stockholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to with or with involving the Company IPO Corporation or otherwise seekact, whether alone or in concert with others, to seek to control, change or influence the management, board of directors or policies of the Company IPO Corporation, or nominate any Person person as a director who is not nominated by of the then incumbent directorsIPO Corporation (except in accordance with its rights under this Agreement), or propose any matter to be voted upon by the shareholders stockholders of the Company;
IPO Corporation; (vi) solicit, negotiate with, or provide any information to, any Person (other than its permitted Representatives) with respect to a merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction with or involving the IPO Corporation or any other acquisition of the IPO Corporation, any acquisition of voting securities of or all or any portion of the assets of the IPO Corporation, or any other similar transaction; (vii) make advise, assist or encourage any request or proposal to amend, waive or terminate other Person in connection with any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofforegoing; or
(viii) take any action that might result in which is reasonably likely to cause or require WBA (or its Affiliates) or the Company having IPO Corporation to make a public announcement regarding any of the types of matters referred set forth in this Section 4.6; (ix) disclose any intention, plan or arrangement inconsistent with the foregoing; or (x) request that the IPO Corporation to in clauses amend or waive any provision of this Section 4.6 (i) through including this clause (vii) of Section 2.3(ax), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 2 contracts
Samples: Stockholders’ Agreement (BrightSpring Health Services, Inc.), Stockholders’ Agreement (BrightSpring Health Services, Inc.)
Standstill. During the Restricted Period, the Global Value Signatories will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Until with respect to Company or the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Voting Securities, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 (as defined below), including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”), whether subject to, ) of proxies or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person consents with respect to the voting election or removal of directors in any voting securities manner or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Company SEC) in any such solicitation of proxies or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
consents; (iii) except as otherwise expressly provided seek to advise, encourage or influence any Person, or assist any Person in this Agreementso encouraging, formadvising or influencing any Person, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the giving or withholding of any voting securities of proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Company;
Board’s recommendation in connection with such matter, if applicable); or (iv) acquireinitiate, offer to acquire encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) “vote no,” “withhold” or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessimilar campaign;
(vib) initiate, propose or otherwise act“solicit” (as such term is used in the proxy rules of the SEC, alone including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or in concert Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with others, respect to seek to propose to the Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of its shareholders “proxy access”; or (iii) conduct any amalgamation, merger, business combination, tender nonbinding referendum or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise hold a “stockholder forum”;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to controlnominate or propose the nomination of or recommend the nomination of, change any candidate to the Board; or influence (iii) seek, alone or in concert with others, or encourage any Person to seek, the management, board removal of directors or policies any member of the Company Board;
(e) (i) call or nominate seek to call a special meeting of Company’s stockholders, or encourage any Person as to call a director who is not nominated special meeting of Company’s stockholders; (ii) act or seek to act by the then incumbent directors, written consent of stockholders; or propose (iii) make a request for any matter to be voted upon by the shareholders stockholder list or other records of the Company;
(viif) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(g) (i) make any request offer or proposal (with or without conditions) with respect to amendany tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or similar extraordinary transaction involving Company, any of its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any Restricted Person; (ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) prior to Company announcing an Extraordinary Transaction, publicly or privately comment to any Third Party on any proposal regarding any Extraordinary Transaction (it being understood that this clause (g) will not restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that this clause (h) will not prevent any Restricted Person from (i) bringing litigation to enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or (v) responding to or complying with a validly issued legal process;
(i) take any action in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or terminate make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company 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 Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(j) sell, offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(k) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or swap transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of Company;
(l) enter into any stock borrowing, stock pledging or stock lending arrangement or agreement with respect to securities of Company;
(m) other than through non-public communications with Company that would not reasonably be expected to trigger public disclosure obligations for any Party, make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board, Company or its management, policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or that would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(n) enter into any economic relationship with any Person in respect of Company, or compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company (other than pursuant to ordinary course compensation arrangements related to the Global Value Director’s service as an employee of any member of the Global Value Group) with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities (it being understood that, notwithstanding anything to the contrary in this Agreement and notwithstanding any termination of this Agreement, the restrictions on the Global Value Signatories and the other Restricted Persons contemplated by this clause (n) will be operative so long as the Global Value Director is serving on the Board);
(o) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(p) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 2.3(a13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Global Value Group in the aggregate owning, controlling or otherwise having any beneficial or other ownership interest of more than 29.9 percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that a member of the Global Value Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities), it being understood that the following will not be deemed to violate this clause (p): (i) the receipt by the Global Value Director from Company of any ordinary course compensation received as a director of Company in the form of Voting Securities (or securities exercisable for Voting Securities); and (B) the pro rata acquisition of securities of Company or any rights decoupled from the underlying securities of Company pursuant to any stock splits, stock dividends, reclassifications, recapitalizations, combinations or rights issuances (including the pro rata acquisition of securities upon the exercise of such rights) in respect of securities of Company beneficially owned by the Global Value Group in compliance with this Agreement (it being understood that, notwithstanding anything to the contrary in this Agreement and notwithstanding any termination of this Agreement, the restrictions on the Global Value Signatories and the other Restricted Persons contemplated by this clause (p) will be operative for a minimum of five years); or
(q) other than through open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell, through swap or hedging transactions or otherwise, any securities of Company to any Third Party that, to the knowledge of any member of the Global Value Group (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities; provided, that, for purposes of this clause (q), the term “Third Party” shall not include any limited partner of GVP 2021 A, L.P. (the “Fund”) that (i) receives a distribution in kind of Company’s common shares from the Fund and (ii) holds such shares in an account that no member of the Global Value Group has discretionary investment authority over; provided, further, that this clause (q) shall not prohibit a Shareholder the Global Value Signatories from making a confidential request selling or proposal otherwise transferring securities of Company to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, which the Company may accept or reject in its sole discretion, their Affiliates and Associates so long as any such request is made Affiliates or Associates sign a joinder in a manner that does not require public disclosure thereof; or
(viii) take any action that might result in the form and substance reasonably satisfactory to Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 which they agree to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity be bound by this Agreement as if a member of the Boardsignatory hereto.
Appears in 2 contracts
Samples: Board Matters Agreement (Global Value Investment Corp.), Agreement (Rocky Mountain Chocolate Factory, Inc.)
Standstill. For the period (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 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) Until through (j) below not approved by the later Board of (x) the three (3)-year anniversary Directors of the Closing Company; Purchaser will not, and will cause its associates (yas such term is defined under the Exchange Act) and its affiliates whom it controls (as such term is defined under the date on which no nominee designated Exchange Act) not to, unless expressly requested in writing, in advance, by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination Company or pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without a written agreement with the prior approval of the Board, such Shareholder will notCompany, directly or indirectly, in any manner whatsoever:
(ia) acquire, announce an intention to acquire, offer or propose to acquire, solicit an offer to sell or donate or agree to acquire, or enter into any arrangement or undertaking to acquire, directly or indirectly, alone or in concert with othersby purchase, by purchase gift or otherwise, two percent (2%) record or more of any direct or indirect “beneficial ownership” (as defined ownership interest in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares any assets of the Company or any direct or indirect rights, warrants or options to acquireacquire record or direct or indirect beneficial ownership of any securities or assets of the Company (an “Acquisition”), or securities convertible into or exchangeable for, two percent (2%) if such Acquisition would cause Purchaser to beneficially own 15% or more of any the voting equity securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(iib) except as otherwise expressly provided make, propose to make, or participate in this Agreementany merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, or other similar transaction involving the Company;
(c) solicit, make, or 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” to vote (as such terms are used defined in the proxy rules of the SEC Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act)) or consents from any holders of any securities of the Company;
(d) call or seek to have called any meeting of the stockholders of the Company or any subsidiary thereof or seek or act, whether subject toalone or in concert with others, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever whatsoever, any Person person or entity with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeCompany;
(iiie) except as otherwise expressly provided in this Agreement, form, join or in 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vf) 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 two percent (2%) or more of any voting securities Directors of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessubsidiaries;
(vig) 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 of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or subsidiary thereof inconsistent with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3letter agreement, which including, without limitation, any intent, purpose or plan that requires the Company may accept to waive the benefit of or reject in its sole discretion, so long as amend any such request is made in a manner that does not require public disclosure thereof; orprovision of this letter agreement;
(viiih) take any action that which might result in require the Company having to make a public announcement regarding any matter of the matters referred to types set forth in clauses (ia) through (viig) of this Section 2.3(a)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 dotake, 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 arrangement person to take any action of the type referred to in clauses (a) through (i), inclusive, of this
Section 6.1. The expiration of the Standstill Period shall not terminate or understanding or discussions with others to do, otherwise affect any of the actions restricted or prohibited under clauses (i) through (vii) other provisions of Section 2.3(a)this letter agreement.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Purchase Agreement (Zucker Anita G)
Standstill. (a) Until During the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Standstill Period, each Shareholder agrees thatAREX Party shall not, without the prior approval of the Board, such Shareholder will notand shall cause its Representatives not to, directly or indirectly:
(i) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, (A) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of Fiesta or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to Fiesta or any of its subsidiaries or (C) any form of tender or exchange offer for shares of Common Stock or other Voting Securities, whether or not such transaction involves a Change of Control (as defined below) of Fiesta; it being understood that the foregoing shall not prohibit the AREX Parties or their Affiliates from acquiring Voting Securities within the limitations set forth in Section 5(a)(iii);
(ii) engage in, or assist in the engagement in, any solicitation of proxies or written consents to vote any Voting Securities, or conduct, or assist in the conducting of, any type of binding or nonbinding referendum with respect to any Voting Securities, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to, or from the holders of, any Voting Securities, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Securities Exchange Act of 1934, as amended, and with the rules and regulations thereunder (the “Exchange Act”), to vote any securities of Fiesta (including by initiating, encouraging or participating in any “withhold” or similar campaign);
(iii) purchase or otherwise acquire, offer or offer, seek, propose to acquire, solicit an offer to sell or agree to acquire, ownership (including beneficial ownership) of any securities of Fiesta, any direct or indirect rights or options to acquire any such securities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock, or any assets or liabilities of Fiesta; provided that the AREX Parties and their Affiliates, in the aggregate, may acquire beneficial ownership of up to 14.9% of the then outstanding Voting Securities;
(iv) advise, encourage 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 Fiesta;
(v) sell, offer or agree to sell directly or indirectly, alone through swap or in concert with others, by purchase hedging transactions or otherwise, two percent the securities of Fiesta or any rights decoupled from the underlying securities held by any of the AREX Parties to any person not (2%A) a party to this Agreement, (B) a member of the Board, (C) an officer of Fiesta, or more (D) an Affiliate of any direct Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) that would knowingly (after due inquiry) result in such Third Party, together with its Affiliates, owning, controlling or indirect “otherwise having any beneficial ownership” or other ownership interest representing in the aggregate in excess of 4.9% of the shares of Common Stock 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;
(vi) take any action in support of or make any proposal or request that constitutes or would result in: (A) advising, controlling, changing or influencing any director or the management of Fiesta, including, but not limited to, any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of Fiesta, (C) any other material change in Fiesta’s management, business or corporate structure, (D) seeking to have Fiesta waive or make amendments or modifications to the Bylaws or the Certificate of Incorporation (as defined in below), or other actions that may impede or facilitate the acquisition of control of Fiesta by any person, (E) causing a class of securities of Fiesta 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 Fiesta to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vii) communicate with stockholders of Fiesta or others pursuant to Rule 13d-3 and Rule 13d-5 14a-1(l)(2)(iv) under the Exchange Act;
(viii) engage in any course of Common Sharesconduct with the purpose of causing stockholders of Fiesta to vote contrary to the recommendation of the Board on any matter presented to Fiesta’s stockholders for their vote at any meeting of Fiesta’s stockholders or by written consent;
(ix) act, any securities convertible including by making public announcements or exchangeable into Common Shares speaking to reporters or direct members of the media (whether “on the record” or indirect rightson “background” or “off the record”), warrants to seek to influence Fiesta’s stockholders, management or options the Board with respect to acquireFiesta’s policies, operations, balance sheet, capital allocation, marketing approach, business configuration, Extraordinary Transactions, or securities convertible into strategy or exchangeable for, two percent (2%) to obtain representation on the Board or more seek the removal of any voting securities of the Companydirector in any manner, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions except as expressly permitted by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(iix) except as otherwise expressly provided in this Agreement, makecall or seek to call, or in any way participate in, directly or indirectlyrequest the call of, alone or in concert with others, any “solicitation” meeting of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act)stockholders, whether subject toor not such a meeting is permitted by the Bylaws, including a “town hall meeting”;
(xi) deposit any shares of Common Stock or exempt from the federal proxy rules, seek to advise or influence other Voting Securities in any manner whatsoever voting trust or subject any Person shares of Common Stock or other Voting Securities to any arrangement or agreement with respect to the voting of any shares of Common Stock or Voting Securities (other than any such voting securities of trust, arrangement or agreement solely among the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeAREX Parties that is otherwise in accordance with this Agreement);
(iiixii) except as otherwise expressly provided seek, or encourage or advise any person, to submit nominations in this Agreementfurtherance of a “contested solicitation” for the election or removal of directors with respect to Fiesta or seek, encourage or take any other action with respect to the election or removal of any directors;
(xiii) form, join or in any other 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 of the Company;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a)Voting Security; provided, however, that this clause nothing herein shall not prohibit a Shareholder from making a confidential request or proposal limit the ability of an Affiliate of an AREX Party to join the Chief Executive Officer or Chairman of “group” following the Board of the Company seeking an amendment or waiver of the provisions execution of this Section 2.3, which the Company may accept or reject in its sole discretionAgreement, so long as any such Affiliate agrees in writing to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Exchange Act, files a Schedule 13D or an amendment thereof, as applicable, within two (2) business days after disclosing that the AREX Party has formed a group with such Affiliate;
(xiv) demand a copy of Fiesta’s list of stockholders or its other books and records or make any request is made pursuant to Rule 14a-7 under the Exchange Act or under any statutory or regulatory provisions of Delaware providing for stockholder access to books and records (including lists of stockholders) of Fiesta;
(xv) make any request or submit any proposal to amend or waive the terms of this Section 5 other than through non-public communications with Fiesta that would not be reasonably likely to trigger public disclosure obligations for any Party;
(xvi) engage any private investigations firm or other person to investigate any of Fiesta’s directors or officers;
(xvii) disclose in a manner that does not require could reasonably be expected to become public disclosure thereofany intent, purpose, plan or proposal with respect to any director or the Company’s management, policies, strategy, operations, financial results or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement; or
(viiixviii) enter into any discussions, negotiations, agreements or understandings with any person with respect to any action the AREX Parties are prohibited from taking pursuant to this Section 5, or advise, assist, knowingly encourage or seek to persuade any person to take any action that might result 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 anything to the contrary contained in this Section 5, the AREX Parties shall not be prohibited or restricted from: (A) communicating privately with the Board or any officer or director of Fiesta, in the manner set forth for communicating with the Company in the Company having to make a Policies, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public announcement regarding disclosure of such communications by any of the matters referred AREX Parties or their respective Affiliates, Fiesta or its Affiliates or any Third Party, subject in any case to in clauses any confidentiality obligations to Fiesta of any such director or officer and applicable law, rules or regulations; (iB) through (vii) of Section 2.3(a)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 announce an intention may have, jurisdiction over any AREX Party, provided that a breach by the AREX Parties of this Agreement is not the cause of the applicable requirement; or (C) privately communicating to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted their potential investors or prohibited under clauses (i) through (vii) of Section 2.3(a)investors factual information regarding Fiesta, provided such communications are subject to reasonable confidentiality obligations and are not otherwise reasonably expected to be publicly disclosed.
(b) Nothing The provisions of this Section 5 shall not limit in Section 2.3(a) will limit any respect the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 actions of the Series A Certificate) or otherwise exercise rights any director of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act Fiesta in his or her capacity as a member such, recognizing that such actions are subject to such director’s fiduciary duties to Fiesta and its stockholders and the Company Policies (it being understood and agreed that neither the AREX Parties nor any of their Affiliates shall seek to do indirectly through the New Director (or any Replacement) anything that would be prohibited if done by any of the BoardAREX Parties or their Affiliates). The provisions of this Section 5 shall also not prevent the AREX Parties from freely voting their shares of Common Stock (except as otherwise provided in Section 2 hereto).
(c) During the Standstill Period, each AREX Party shall refrain from taking any actions which could have the effect of encouraging, assisting or influencing other stockholders of Fiesta or any other persons to engage in actions which, if taken by any AREX Party, would violate this Agreement.
(d) Notwithstanding anything contained in this Agreement to the contrary, the provisions of Sections 1, 2 and 3 of this Agreement shall automatically terminate upon the consummation of a Change of Control transaction agreed to by the Board and involving Fiesta if the acquiring or counter-party to the Change of Control transaction has conditioned the closing of the transaction on the termination of such sections.
(e) During the Standstill Period, each of the AREX Parties shall provide to Fiesta true, accurate and complete copies of any new Investor Agreements (as defined below) and any amendment, modification, extension or termination of any Investor Agreements, in each case, within five (5) business days of the execution or termination, as applicable, thereof.
(f) During the Standstill Period, each of the AREX Parties agrees not to, and to cause its Representatives not to, comment publicly about any director or the Company’s management, policies, strategy, operations, financial results or affairs or any transactions involving Fiesta or any of its subsidiaries, except as expressly permitted by this Agreement.
(g) At any time the AREX Parties cease to have a Schedule 13D filed with the SEC and during the Standstill Period, upon reasonable written notice from Fiesta pursuant to Section 16 hereof, the AREX Parties shall promptly provide Fiesta with information regarding the amount of the securities of Fiesta (a) beneficially owned by each such entity or individual, (b) with respect to which the AREX Parties have (i) any direct or indirect rights or options to acquire or (ii) any economic exposure through any derivative securities or contracts or instruments in any way related to the price of such securities, or (c) with respect to which any AREX Party has hedged its position by selling covered call options. This ownership information provided to Fiesta will be kept strictly confidential, unless required to be disclosed pursuant to applicable laws and regulations, any subpoena, legal process or other legal requirement or in connection with any litigation or similar proceedings in connection with this Agreement.
Appears in 1 contract
Samples: Cooperation Agreement (Fiesta Restaurant Group, Inc.)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing Except as set forth in this Section and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination excluding shares that it holds or may acquire pursuant to Section 1.1 (the Equity Agreements, BMS hereby agrees that for [*], neither BMS nor any of its Affiliates will, and will not assist or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will notencourage others to, directly or indirectly:
, without the consent of Corgentech: (i) 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 purchase, gift or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” ownership (as defined in within the meaning of Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") of Common Shares, or interest in any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares Corgentech (in addition to those owned or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired BMS pursuant to the Transaction Documents (as defined in the Investment AgreementEquity Agreements), including pursuant to Section 2.1 of this Agreement;
; (ii) except as otherwise expressly provided effect or seek, initiate, offer or propose or participate in this Agreementor assist any other person to effect or seek, initiate, offer or propose any (A) tender or exchange offer, merger, consolidation or other business combination involving Corgentech; or (B) any recapitalization, restructuring, liquidation, dissolution, sale of assets or other extraordinary transaction with respect to Corgentech; (iii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of “"proxies” " to vote (as such terms are used in the proxy rules of the SEC United States Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from provided that the federal proxy rules, seek to advise or influence prohibition in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
this subsection (iii) except as otherwise expressly provided in this Agreement, shall not apply to solicitations exempted from the proxy solicitation rules by Rule 14a-2 under the Exchange Act; (iv) 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
Corgentech; (v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or act in concert with others, to seek to propose to control the Company Board of Directors of Corgentech, provided that nothing in this subsection (vi) shall prevent BMS or any Affiliate of its shareholders any amalgamationBMS, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, either acting alone or in concert with otherseach other, to control, change from taking any action that it believes is required of it under applicable law; or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make enter into any request agreements, discussions or proposal arrangements with any Third Party with respect to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred foregoing. Nothing in this Section 17.13 shall prohibit BMS from purchasing any securities of Corgentech pursuant to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any the terms of the actions restricted Equity Agreements, including any right of first refusal or prohibited under clauses (i) through (vii) preemptive rights as set forth therein, and BMS shall not be treated as having breached any covenant of Section 2.3(a)this Agreement as a result of such purchase.
(b) Nothing in this Section 2.3(a17.13 shall prohibit BMS' or its Affiliates' employees from purchasing securities of Corgentech pursuant to (i) will limit a pension plan established for the Shareholder’s ability to vote benefit of BMS' or its Affiliates' employees, (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 ii) any employee benefit plan of the Series A CertificateBMS or its Affiliates or (iii) any stock portfolios not controlled by BMS or otherwise exercise rights any of its Common Shares Affiliates that invest in Corgentech among other companies. Further, nothing herein shall prevent BMS or Series A Preference Shares its Affiliates from acquiring securities of another biotechnology or pharmaceutical company or other Person that beneficially owns any of Corgentech's securities.
(c) This Section 17.13 shall terminate and BMS and its Affiliates shall have the ability right to acquire any securities of Corgentech without regard to the limitations set forth in this Section 17.13 in the event that an Acquisition Transaction (as defined below) with respect to Corgentech shall have been publicly proposed by a party unaffiliated with BMS and accepted or approved by Corgentech, or if rejected or not approved by Corgentech, pursued on a unilateral basis pursuant to a tender or exchange offer and/or a proxy solicitation, or if Corgentech shall have entered into an agreement in principle or definitive agreement providing for an Acquisition Transaction. "Acquisition Transaction" means (i) any direct or indirect acquisition or purchase of assets representing [*] or more of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote market capitalization of Corgentech or otherwise exercise his any of its subsidiaries or her legal duties of [*] or otherwise act in his or her capacity as a member more of the Boardvoting securities of or equity interest in Corgentech or any of its subsidiaries by any Person or group, or (ii) any tender offer or exchange offer that if consummated would result in any person or group beneficially owning [*] or more of any class of equity securities of Corgentech, or (iii) any merger, consolidation, business combination, sale of assets, recapitalization or similar transaction involving Corgentech representing [*] or more of the market capitalization of Corgentech.
Appears in 1 contract
Standstill. (a) Until Each Investor agrees that, during the later period commencing on the date of this Agreement and ending on the earlier of (xA) the three (3)-year anniversary of the Closing October 1, 2024 and (yB) the date on which no nominee designated by that is thirty (30) calendar days prior to the Majority Approved Holders serves on deadline for the Board and submission of stockholder director nominations for the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 2025 Stockholder Meeting (or have irrevocably waived their rightthe “Standstill Period”), each Shareholder agrees that, without the prior approval of the Board, such Shareholder it will not, and it will cause each of its Affiliates, Associates and Family Members not to, directly or indirectly, in any manner, 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:
(i1) acquire, announce an intention to acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireacquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting stock of the Company generally on a pro rata basis), directly or indirectly, alone by purchase, tender or in concert with othersexchange offer, through the acquisition of control of another person, by purchase joining or maintaining a “group” within the meaning of Section 13(d)(3) of the Exchange Act (as defined below), through swap or hedging transactions or otherwise, two percent beneficial ownership of any voting stock of the Company in excess of an amount equal to 19.99% of the Company’s total outstanding voting power; provided, however, that the Investors will not be prevented from acquiring or agreeing to acquire future or existing convertible bonds of the Company. For the avoidance of doubt, the Investors shall not convert such convertible bonds of the Company if the number of shares of common stock to be issued pursuant to such conversion would result in the holder beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act), in excess of 19.99% of the Company’s total outstanding voting power;
(2%) other than in accordance with the recommendations of the Board, engage, directly or more of indirectly, in any direct or indirect “beneficial ownershipsolicitation” (as defined in Rule 13d-3 and Rule 13d-5 14a-1 of Regulation 14A) of proxies or consents or otherwise become a “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) with respect to the election or removal of Common Sharesdirectors of the Company or any other matter or proposal;
(3) recommend, request, induce, attempt to induce, seek to advise, encourage or influence any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options other person with respect to acquire(i) pursuing any change in, or securities convertible into attempting to influence, the Company’s operations, business, corporate strategy or exchangeable for, two percent policies or (2%ii) the giving or more withholding of any voting securities proxy, consent or other authority to vote or in conducting any type of referendum with respect to the Company, excluding whether binding or non-binding (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter), provided that nothing shall limit the giving by the Investors or their Affiliates of a proxy or consent in respect of any Common Shares or other securities acquired pursuant to a conversion matter so long as the voting of the Series A Preference Shares, bonus issue, dividend or distributions by shares of Common Stock owned thereby are voted in accordance with the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 terms of this AgreementAgreement where applicable;
(ii4) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the grant a proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities stock of the Company to any person other than to the Board or persons appointed as proxies by the Board;
(5) call, seek to call, or to request the call of, a special meeting of the Company’s stockholders (or the setting of a record date therefor);
(6) make a request for or demand an inspection of a list of the Company’s stockholders or any books and records of the Company or seek to propose to influence, advise, change or control the management, board any of directors, policies, affairs or strategy its subsidiaries under Section 220 of the Company by way of any public communication Delaware General Corporation Law or other communications statutory or regulatory provisions providing for stockholder access to securityholders intended for such purposebooks and records;
(iii7) except submit any stockholder proposal pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as otherwise expressly provided in amended (the “Exchange Act”), or otherwise, or any notice of nomination or other business for consideration at a Stockholder Meeting, or nominate any candidate for election to the Board;
(8) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of their respective current or former directors or officers (including derivative actions), other than to enforce the provisions of this Agreement, ;
(9) form, join in, maintain 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 CompanyCompany (other than a “group” that consists solely of all or some of the persons parties to this Agreement);
(iv10) acquiredeposit any shares of voting stock of the Company in a voting trust or similar arrangement or subject any shares of voting stock of the Company to any voting agreement or pooling arrangement, offer other than any such voting trust, arrangement or agreement solely among the Investors and otherwise in accordance with this Agreement;
(11) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board not in violation of the terms of this Agreement;
(12) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board (including through any “withhold” or “vote no” or similar campaign) or any change in the size or composition of the Board or the committees of the Board;
(13) acquire or agree agree, offer, seek or propose to acquire, directly or indirectlycause to be acquired, alone or in concert with others, by purchase, exchange or otherwise, ownership (iincluding beneficial ownership) of any of the assets, tangible assets or intangible, businesses of the Company or any of its Affiliates subsidiaries or (ii) direct or indirect rights, warrants any rights or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or business from any of its Affiliatesperson;
(v14) arrangeother than at the express written request of the Board, seek, propose, or in make any way participatestatement with respect to, directly or indirectlysolicit, in negotiate with, or provide any financing for the purchase of two percent (2%) or more of information to any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Companyperson with respect to, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, restructuringpurchase, recapitalizationsale or transfer of assets or securities, liquidation of or other transaction to or with the Company or otherwise seekdissolution, alone or in concert with othersliquidation, to controlreorganization, change in structure or influence composition of the managementBoard, board of directors or policies change in the executive officers of the Company or nominate its subsidiaries, change or amendment to the Charter or Bylaws, change in capital structure, recapitalization, restructuring, 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 Person such transaction involves a change of control of the Company or any of its subsidiaries; 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 stockholders, and the reasons therefor, so long as a director who any such activity is not nominated by otherwise in compliance with the then incumbent directors, requirements of this Agreement;
(15) sell or propose any matter to be voted upon by the shareholders otherwise transfer its shares of voting stock of the Company, other than in open market sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, to any person that, to the Investors’ knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such person, together with its Affiliates, Associates and Family Members, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the Company’s total outstanding voting power at such time or would increase the beneficial ownership interest of any person who, together with its Affiliates, Associates and Family Members, has a beneficial or other ownership interest in the aggregate of more than 4.9% of the Company’s total outstanding voting power at such time;
(vii16) make 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 terminate waive any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.33, which the Company 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 could not reasonably be expected to require the public disclosure thereofof such request by the Company, the Investors or any other person; or
(viii17) take participate in any action that might result in the Company having to make a public announcement regarding negotiations, discussions, agreement, arrangement or understanding with any person concerning any of the matters referred foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Notwithstanding the foregoing, nothing in clauses this Agreement shall prohibit or restrict the Investors from (i) through communicating privately with the Board, the Chief Executive Officer of the Company, the Chief Financial Officer of the Company, the head of the Company’s investor relations team or, if and to the extent made available to the Investors by the Company, other senior executives 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; (viiii) making or sending private communications to then-existing investors in the Investors or any of Section 2.3(a)their Affiliates, provided that any statements or communications (1) include only publicly available information, (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications and (3) are not intended to, and would not reasonably be expected to, effect, or announce an intention influence any other person to do, undertake or enter into any arrangement or understanding or discussions with suggest to others to dothat they undertake, any of the actions restricted prohibited by Section 3 or prohibited under clauses otherwise inconsistent with this Agreement; or (iiii) through complying with, to the extent required thereby, any subpoena or other compulsory legal process or responding to a request for information from any governmental or regulatory authority with jurisdiction over the Investors; provided that the Investors (viix) use commercially reasonable efforts to ensure that any such information disclosed is afforded confidential treatment and (y) provide prompt notice to the Company in advance of Section 2.3(a).
(b) Nothing such disclosure. Notwithstanding anything contained in Section 2.3(a) will limit this Agreement to the Shareholder’s ability to vote (subject to Section 1.2 above)contrary, Transfer (subject to Section 2.4 below)the Standstill Period shall automatically terminate if the Company enters into a definitive agreement with respect to, convert (subject to Section 7 or the Board has recommended that the stockholders of the Series A Certificate) or otherwise exercise rights Company accept a tender offer that would, if consummated, constitute, a change of its Common Shares or Series A Preference Shares or the ability control of the Shareholders’ director designee elected to Company, unless such transaction has been approved and/or recommended by the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as on a member unanimous basis (inclusive of the BoardNew Director); provided that, if any such transaction is terminated without being completed, the Standstill Period shall again apply upon such termination.
Appears in 1 contract
Standstill. During the period beginning on the first date the Company’s shares of Common Stock commence trading on the Nasdaq Stock Market’s National Market, the New York Stock Exchange or another exchange or marketplace (aa “Stock Exchange”) Until approved the later Board and ending on the earlier of (x) the three one (3)-year 1) year anniversary of the Closing thereof and (y) a Fall-Away Event (such period, the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right“Standstill Period”), each Shareholder agrees thatneither Amgen nor any of its controlled Affiliates shall, directly or indirectly, without the prior approval written consent of a majority of the Boardmembers of the Board who are not affiliated with Amgen:
(a) effect, such Shareholder will notoffer or propose (whether publicly or otherwise) to effect, directly or indirectlypublicly announce any intention to effect or cause:
(i) acquireany acquisition of shares of Common Stock or any acquisition of the right to direct the voting or disposition of shares of Common Stock, offer if after giving effect to such acquisition Amgen or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or any of Affiliates own a number of shares of Common Stock in concert with others, by purchase or otherwise, two percent (2%) or more excess of any direct or indirect “beneficial ownership” the Standstill Cap (as defined below), in Rule 13d-3 and Rule 13d-5 under each case, whether or not any of the Exchange Act) foregoing may be acquired or obtained immediately or only after the passage of Common Shares, any securities convertible time or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) upon the satisfaction of one or more of any voting securities of the Company, excluding any Common Shares or other securities acquired conditions pursuant to a conversion of the Series A Preference Sharesany agreement, bonus issue, dividend arrangement or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreementunderstanding;
(ii) except as otherwise expressly provided in this Agreementany (x) tender or exchange offer, make(y) merger, consolidation, business combination, or (z) sale of substantially all of the assets of the Company (in the case of clauses (x) and (y) that would result in Amgen owning a number of shares of Common Stock in excess of the Standstill Cap);
(iii) any way participate inrecapitalization, directly restructuring, liquidation, dissolution or indirectly, alone other extraordinary transaction with respect to the Company or in concert with others, any of its subsidiaries;
(iv) any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 Regulation 14A of the Exchange Act), whether subject to, ) or exempt from the federal proxy rules, seek consents to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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 vote any voting securities of the Company;
, or become a “participant” in any “election contest” (iv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or as such terms are defined in concert with others, by purchase, exchange or otherwise, (i) any Rule 14a- l 1 of the assetsExchange Act) or propose, tangible or intangible, solicit stockholders of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of approval of, any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert stockholder proposals with others, respect to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(viic) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to with the Chief Executive Officer or Chairman actual knowledge of the Board Amgen’s executive officers, enter into any substantive discussions or arrangements with any third party with respect to any of the Company seeking an amendment foregoing; provided that, in relation to prohibited actions in Sections 7(b)(ii) or waiver (b)(iii) that have been committed without the actual knowledge of the provisions Amgen’s executive officers, Amgen shall promptly terminate and unwind such actions upon written request of this Section 2.3, 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 thereofCompany; or
(viiid) take publicly disclose any action that might result in the Company having to make a public announcement intention, plan or arrangement regarding any of the matters referred to in clauses this Section 7 (unless legally obligated to do so); provided that, that nothing in this Section 7 is intended to (X) restrict Amgen’s right to vote its shares of capital stock or otherwise in its discretion on matters brought to a vote of the stockholders of the Company, or (Y) restrict the act1v1t1es of Amgen or the discussions among the representatives of the Company and Amgen, in each case, as contemplated by the Collaboration Agreements. For purposes of this Letter Agreement, “Standstill Cap” means, during the Standstill Period, the number shares of voting capital stock of the Company which is less than or equal to 24.5% of the total outstanding shares of the Company. For the avoidance of doubt, the Standstill Cap shall only apply during the Standstill Period. The provisions of this Section 7 shall be inoperative and of no force or effect with respect to Amgen and its Affiliates if (i) through any other person or “group” (viias defined in Section 13(d)(3) of Section 2.3(athe Exchange Act) shall have entered into a definitive agreement with the Company for a transaction that, after consummation thereof, the stockholders of the Company cease to own seventy-five percent (75%) or more of the total voting power (without giving effect to any overlapping shareholdings), or announce an intention seventy-five percent (75%) or more of the consolidated total assets, of the Company or any successor entity or parent entity or resulting entity, (ii) a tender or exchange offer is made by any other person or group to doacquire fifty percent (50%) or more of the outstanding voting securities of the Company and the Board fails to recommend to its stockholders rejection of such tender or exchange offer within ten (10) business days of commencement thereof or recommends acceptance of such tender or exchange offer, (iii) the Company issues to any person or group, or enter into any arrangement person or understanding group acquires or discussions with others comes to doown, any in each case, securities representing fifty percent (50%) or more of the actions restricted total voting power of the Company, (iv) the Company publicly announces that it has commenced a formal process to explore strategic alternatives, (v) the Board (or prohibited any duly constituted committee) shall have determined in good faith, after consultation with outside legal counsel, that the failure to waive, limit, amend or otherwise modify the “standstill” or similar provisions the Company has agreed to with any other person or group, would be reasonably likely to be inconsistent with the fiduciary duties of the Company’s directors under clauses applicable law, or (ivi) through the Company enters into a voluntary or involuntary bankruptcy or insolvency process (viiany such event, a “Fall-Away Event”). Nothing in this Section 7 shall prohibit Amgen from communicating with the Company (including the Board, management or their designated representatives) for a non-public proposal regarding a transaction or an amendment or waiver of Section 2.3(a6 in such a manner as would not reasonably be expected to require public disclosure thereof under applicable law (for clarity, the contents, subject and existence of any such communication shall constitute “Confidential Information” under that certain Confidential Disclosure Agreement between Amgen and the Company dated March 5, 2020, as amended).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Letter Agreement (Amgen Inc)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Each Shareholder agrees that, for a period commencing on the date of this Agreement and ending three years after the Closing Date (the "STANDSTILL PERIOD"), without the prior approval written consent of the BoardParent, such Shareholder will it shall not, directly or indirectly:
(i) 2.1 in any manner acquire, offer offer, agree or propose to acquire, solicit an offer or announce or disclose any intention to sell acquire, offer, agree or agree propose to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwiseotherwise (other than pursuant to a stock split, two percent (2%) stock dividend or more other pro rata distribution effected by Parent to holders of any direct class of its outstanding securities with the power to vote with respect to the election of directors generally ("VOTING SECURITIES")), any Voting Securities, or indirect “beneficial ownership” any Commitments to acquire any Voting Securities, other than Voting Securities issued pursuant to the Merger Agreement, if, immediately after any such acquisition, the Shareholder would "beneficially own" (as such term is defined in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject toin the aggregate, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities Voting Securities representing more than 5% of the Company or seek to propose to influence, advise, change or control the management, board outstanding Voting Securities of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeclass;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange2.2 make, or in any way participate, directly or indirectly, in any financing "solicitation" of "proxies" (as such terms are defined in Rule 14a-1 promulgated under the Exchange Act) to vote any Voting Securities, seek to advise, encourage or influence any Person with respect to the voting of any Voting Securities, initiate, propose or "solicit" (as such term is defined in Rule 14a-1 promulgated under the Exchange Act) holders of Voting Securities for the purchase of two percent (2%) or more approval of any shareholder proposal, initiate or propose any shareholder proposal, or induce or attempt to induce any other Person to initiate any shareholder proposal; provided that the Shareholder shall not be deemed to have breached this Section 2.2 by reason of (i) membership on the Board of Directors of Parent, (ii) voting securities such Shareholder's Voting Securities in accordance with this Section 2, or (iii) such Shareholder's participation in and consistent with Parent's solicitation of proxies in connection with any annual or special meeting of the Company shareholders of Parent;
2.3 make any statement or proposal, whether written or oral, to the Board of Directors of Parent, or to any securities convertible into director or exchangeable officer of Parent, or exercisable for two percent (2%) otherwise make any announcement or more proposal, or disclose any intention to propose to enter into, directly or indirectly, any merger, business combination or similar transaction, or material Transfer of any voting securities assets, liquidation or assets of the Companyother extraordinary corporate transaction, except for such assets as are then being offered for sale by the Company with or involving Parent or any of its Affiliates;
2.4 form, join or in any way participate in a "group" (viwithin the meaning of Section 13(d)(3) of the Exchange Act), or otherwise act in concert with any Person, with respect to any securities of Parent (i) for the purpose of circumventing the provisions of this Section 2, or (ii) for the purpose of holding, acquiring, voting or Transferring any Voting Securities;
2.5 deposit any Voting Securities into a voting trust or subject any Voting Securities to any Contract, arrangement or understanding with respect to the voting of any Voting Securities;
2.6 otherwise act, alone or in concert with othersothers (including by providing financing, advice or other assistance to another Person), to seek or offer to propose exercise any control or influence, in any manner, over the management, Board of Directors or policies of Parent or its Affiliates, other than in a capacity as a director or officer of Parent, or by voting its Voting Securities in accordance with this Agreement;
2.7 knowingly Transfer any interest in any Voting Securities knowingly made to any Person or member of any "group" (within the Company meaning of Section 13(d)(3) of the Exchange Act) if, after giving effect to such Transfer, such Person or "group" would "beneficially own" (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) or have the right to acquire, in the aggregate, Voting Securities representing more than 5% of the outstanding Voting Securities of any class;
2.8 make a public request to Parent (or its Representatives or shareholders) to amend or waive any provisions of this Agreement, including any public request to permit the Shareholder or any other Person to take any action proscribed by this Section 2;
2.9 participate in any action by written consent of the shareholders of Parent (except upon the unanimous recommendation of the Board of Directors of Parent);
2.10 take any action, or request Parent or its Representatives, directly or indirectly, to take any action, which might require Parent or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having Affiliates to make a public announcement regarding any the possibility of the matters referred to in clauses a (i) through the acquisition of Voting Securities by the Shareholder of any of its Affiliates, (viiii) a business combination, merger, sale of Section 2.3(a)Voting Securities or similar transaction involving the Shareholder or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other, or announce an intention (iii) the Transfer to dothe Shareholder or any of its Affiliates of all or any material portion of the property or assets of Parent or any of its Affiliates; or, advise, assist or encourage any other Person in connection with, or enter into make any arrangement or understanding or discussions with others to dopublic statement regarding, any of the actions restricted foregoing; or
2.11 disclose any intention, plan or prohibited under clauses (i) through (vii) of Section 2.3(a)arrangement inconsistent with the foregoing.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Lilly agrees that, without for a period commencing on the prior approval Effective Date and ending *** after the Effective Date, unless specifically invited in writing to do so by Incyte, Lilly and each of the Board, such Shareholder its Affiliates will notnot in any manner, directly or indirectly:
(i) acquireeffect, or seek, 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 effect (whether publicly or otherwise) or cause or participate in, two percent (A) any acquisition of (1) any Voting Stock of Incyte or any securities that at such time are convertible or exchangeable into or exercisable for any Voting Stock of Incyte (collectively, “Voting Securities”); (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants rights or options to acquireacquire any Voting Securities; or (3) any assets or securities of Incyte or any of its subsidiaries; (B) any merger, consolidation, tender or exchange offer, or securities convertible into other business combination involving Incyte or exchangeable forany Affiliate thereof; (C) any restructuring, two percent recapitalization, liquidation, dissolution or similar transaction with respect to Incyte or any Affiliate thereof; (2%D) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are defined or used in Regulation 14A under the proxy rules of the SEC promulgated pursuant Exchange Act) or consents with respect to Section 14 any Voting Securities, any “election contest” (as such term is defined or used in Rule 14a-11 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person ) with respect to the voting Incyte, or any demand for a copy of any voting securities Incyte’s stock ledger, list of the Company or seek to propose to influenceits stockholders, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposebooks and records; or (E) any action inconsistent with the terms of this Section 10.5;
(iiiii) except as otherwise expressly provided in this Agreement, form, join or in any way join, participate in a or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the CompanyVoting Securities;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(viiii) otherwise act, alone or in concert with othersothers (including by providing financing for another party), to seek or offer to propose to the Company control or influence, in any of its shareholders any amalgamationmanner, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board Board of directors Directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the CompanyIncyte;
(viiiv) take any action that might force Incyte to make a public announcement regarding any of the types of matters set forth in Section 10.5(a)(i);
(v) make (publicly or to Incyte, or its directors, officers, employees, agents or security holders, directly or indirectly) any request or proposal to amend, waive or terminate any provision of this Section 2.3(a)10.5 or any inquiry or statement relating thereto; providedor
(vi) instigate, that encourage or assist any Third Party to do any of the foregoing.
(b) Notwithstanding anything in this clause shall not prohibit a Shareholder from making a confidential request or proposal Section 10.5 to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of contrary, the provisions of this Section 2.310.5 shall immediately cease to be of any effect as to Lilly and its Affiliates and shall be deemed to be waived in the event (i) ***; or (ii) a person or 13D Group not including Lilly or its Affiliates ***. In the event that the transactions contemplated by this clause shall have been terminated or abandoned, which and such termination or abandonment is demonstrable by objective, written evidence provided by Incyte to Lilly, all of the Company restrictions in this Section 10.5 shall again be applicable as to the activities Lilly or its Affiliates initiate thereafter for the remainder of the period specified herein.
(c) Notwithstanding anything in the Section 10.5 to the contrary, Lilly and its Affiliates may accept or reject acquire an aggregate amount of Voting Securities that would represent less than *** of the voting power represented by Incyte’s Voting Stock solely for the purposes of investment in its sole discretion, the ordinary course of business (so long as any decision to make such request acquisition is made in a manner that does not require public disclosure thereof; orcompliance with United States securities laws). Nothing in this Section 10.5 shall ***.
(viiid) take any action that might result in the Company having This Section 10.5 shall not apply to make a public announcement regarding any of the matters referred activities with respect to in clauses (i) through (vii) of Section 2.3(a), Licensed Compounds or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)Licensed Products contemplated by this Agreement.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: License, Development and Commercialization Agreement (Incyte Corp)
Standstill. During the Restricted Period, the Xxxxxxx Signatories will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Until with respect to Company or the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Voting Securities, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, knowingly encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 (as defined below), including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”), whether subject to, ) of proxies or exempt from consents with respect to the federal election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules, rules of the SEC) in any such solicitation of proxies or consents; (iii) seek to advise or influence in knowingly encourage any manner whatsoever Person, or knowingly assist any Person in so encouraging or advising any Person, with respect to the voting giving or withholding of any voting securities of the Company or seek to propose to influenceproxy, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication consent or other communications authority to securityholders intended for vote or act (other than such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join encouragement or in any way participate in a “group” within advice that is consistent with the meaning of Section 13(d)(3) of the Exchange Act with respect Xxxxxxx Signatories’ voting obligations pursuant to any voting securities of the Company;
paragraph 7); or (iv) acquireinitiate, offer to acquire knowingly encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) “vote no,” “withhold” or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessimilar campaign;
(vib) initiate, propose or otherwise act“solicit” (as such term is used in the proxy rules of the SEC, alone including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or in concert Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or knowingly encourage any Person to initiate or submit any such shareholder proposal;
(c) with others, respect to seek to propose to the Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or knowingly encourage any Person to take any action pursuant to, any type of its shareholders “proxy access”; or (iii) conduct any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise nonbinding referendum;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or knowingly encourage any Person to controlnominate or propose the nomination of or recommend the nomination of, any candidate to the Board; or (iii) seek, alone or in concert with others, or knowingly encourage any Person to seek, the removal of any member of the Board;
(e) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(i) make any public offer or proposal (with or without conditions) with respect to any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, sale of all or substantially all of Company’s assets, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving Company, any of its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any Restricted Person; (ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or knowingly encourage or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) publicly comment on any Extraordinary Transaction (it being understood that this clause (f) will not restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(g) take any action in support of, or publicly make any proposal or request that constitutes: (i) controlling or changing the Board or management of Company, including any plans or proposals to change the number or influence the management, board term of directors or policies to fill any vacancies on the Board; (ii) controlling or changing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling or changing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company 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 Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Company Exchange Act;
(h) sell, offer or nominate agree to sell to any Person as Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(i) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or swap transaction) with respect to any security (other than a director who is not nominated by broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the then incumbent directors, market price or propose any matter to be voted upon by the shareholders value of the securities of Company;
(viij) other than through non-public communications with Company that would not reasonably be expected to trigger public disclosure obligations for either Company or any member of the Xxxxxxx Group, make or disclose any request statement regarding any intent, purpose, plan or proposal with respect to amendthe Board, waive Company or terminate any provision of Section 2.3(a); providedits management, policies, affairs or assets, or the Voting Securities or this Agreement, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of is inconsistent with the provisions of this Section 2.3Agreement;
(k) compensate or enter into any agreement, which arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities (it being understood that, notwithstanding anything to the Company may accept or reject contrary in its sole discretionthis Agreement and notwithstanding any termination of this Agreement, the restrictions on the Xxxxxxx Signatories and the other Restricted Persons contemplated by this clause (k) will be operative so long as either of the New Directors is serving on the Board);
(l) other than with other Restricted Persons, enter into any such request is made negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or knowingly encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(m) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in a manner the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that does would result in the Xxxxxxx Group beneficially owning, controlling or otherwise having any voting interest over more than 9.9 percent of the then-outstanding Voting Securities (for the avoidance of doubt, notwithstanding anything to the contrary in this clause (m), the receipt by either of the New Directors from Company of any ordinary course compensation in the form of Voting Securities (or securities exercisable for Voting Securities) will not require public disclosure thereofbe deemed to violate this clause (m)); or
(viiin) take other than through open market broker sale transactions where the identity of the purchaser is not known or in underwritten widely dispersed public offerings, sell, offer, assign or otherwise dispose, or agree to sell, offer, assign or otherwise dispose, through swap or hedging transactions or otherwise, any action that might securities of Company to any Third Party that, to the knowledge of any member of the Xxxxxxx Group (after reasonable inquiry in connection with a private, non-open market transaction), would result in the Company such Third Party, together with its Affiliates and controlled Associates, beneficially owning, controlling or otherwise having to make a public announcement regarding any voting interest over more than 4.9 percent of the matters referred then-outstanding Voting Securities (it being understood that the restrictions in this clause (n) will not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of activism or known plans to engage in clauses activism). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement, including the restrictions in this paragraph 8, shall prohibit or restrict any Restricted Person from (i) making any true and correct statement to the extent required by applicable legal process, subpoena or legal requirement from any governmental authority with competent jurisdiction over such Restricted Person so long as such request did not arise as a result of any action by such Restricted Person; (ii) communicating privately with any director or executive officer of Company, or members of the investor relations team made available for communications involving broad-based groups of investors (including through (vii) of Section 2.3(aparticipation in investor meetings and/or conferences), or announce an intention on any matter so long as such communications would not reasonably be expected to dorequire public disclosure obligations for any party; (iii) stating how it intends to vote with respect to any Extraordinary Transaction that is publicly announced by Company and the reasons therefor, or enter into (iv) making or sending private communications to investors or prospective investors in any arrangement Restricted Person, provided that such statements or understanding or discussions with others communications (1) are based on publicly available information; (2) are not reasonably expected to do, any of be publicly disclosed and are understood by all parties to be confidential communications; and (3) are not intended to circumvent the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)restrictions in this Agreement.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Director Appointment Agreement (Oportun Financial Corp)
Standstill. (a) Until the later of (x) the three (3)-year anniversary Each member of the Closing Arbor Group severally, and (y) not jointly, agrees that, for a period of 12 months from the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees thatof this Agreement, without the prior approval written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, such Shareholder he or it will not, directly and will cause each of his or indirectlyits officers, agents and other Persons, including any Affiliates or Associates identified in the Arbor Schedule 13D as members of the “Arbor Group” as therein defined, acting on his or its behalf not to:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangeengage, or in any way participate, directly or indirectly, in any financing for “solicitation” (as such term is defined in Rule 14a-1(l) promulgated by the purchase SEC under the Securities Exchange Act of two percent 1934, as amended (2%the “Exchange Act”)) of proxies or more consents (whether or not relating to the election or removal of directors); advise, encourage or influence any Person (as herein defined) with respect to the voting of any voting securities Voting Securities with respect to the 2008 Annual Meeting or any other meeting of the Company’s stockholders that occurs prior to the termination of this Agreement in a manner that is inconsistent with the terms of this Agreement; nominate or propose any person for election to the Board; or initiate, propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) stockholders of the Company for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or any securities convertible into Rule 14a-4 or exchangeable or exercisable for two percent (2%exempt solicitations pursuant to Rule 14a-2(b)(1) or more Rule 14a-2(b)(2) under the Exchange Act or otherwise induce or encourage any other Person to initiate any such stockholder proposal; or otherwise communicate with the Company’s stockholders or others pursuant to Rule 14a-1(1)(2)(iv) under the Exchange Act;
(ii) other than in connection with Section 2 hereof, seek or propose, or make any statement 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 that the Arbor Group may seek or assets propose a sale or purchase of the Companyshares of the Company beneficially owned by the Arbor Group as of the date hereof), except for such assets as are then being offered for sale by dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any of its Affiliates;
(viiii) otherwise form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than a “group” that includes all or some lesser number of the Persons identified as “Reporting Persons” in the Arbor Schedule 13D, but does not include any other members who are not currently identified as Reporting Persons;
(iv) act, alone or in concert with others, to control or seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence or seek to influence, the management, board of directors Board or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(v) other than as previously disclosed in the Arbor Schedule 13D, 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, except as expressly set forth in this Agreement;
(vi) knowingly enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing, or make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing;
(vii) make discuss or communicate any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal information with respect to the Chief Executive Officer or Chairman Company and its business, including but not limited to information related to the evaluation of any strategic alternatives under consideration by the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofBoard; orand
(viii) take or cause or induce others to take any action that might result in the Company having to make a public announcement regarding inconsistent with any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing The Arbor Group hereby waives any right (whether by statute or agreement) to inspect records and lists of Company stockholders (including any list of non-objecting beneficial owners) in Section 2.3(a) will limit connection with the Shareholder’s ability to vote (subject to Section 1.2 above)2008 Annual Meeting, Transfer (subject to Section 2.4 below), convert (subject to Section 7 of including the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board Arbor has pursuant to Section 1.1 that certain agreement dated March 12, 2008, between Arbor and the Company, that requires the Company to vote produce or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Boardprovide access to certain stockholder records.
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) From the date on which no nominee designated by of this Agreement until the Majority Approved Holders serves on Expiration Date or until such earlier time as the Board and the Shareholders are no longer entitled to designate any directors for nomination restrictions in this paragraph 13 terminate pursuant to Section 1.1 the terms of this Agreement (or have irrevocably waived their rightsuch period, the “Restricted Period”), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will Investor shall not, directly and shall cause its Affiliates and Associates under its control or indirectly:
direction (icollectively, the “Restricted Persons”) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquirenot to, directly or indirectly, alone absent prior express written invitation or authorization by the Board:
a) engage in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownershipsolicitation” (as such term is defined under the Securities Exchange Act of 1934, as amended and the rules promulgated thereunder (the “Exchange Act”)) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such term is defined in Rule 13d-3 and Rule 13d-5 Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of Common Shares, any securities convertible proxies or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreementconsents;
(iib) except as otherwise expressly provided in this Agreementknowingly encourage, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence any other Person or knowingly assist any Person in any manner whatsoever so encouraging, advising or influencing any Person with respect to the voting giving or withholding of any voting securities of the Company or seek to propose to influenceproxy, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication consent or other communications authority to securityholders intended for vote (other than such purposeencouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(iiic) except as otherwise expressly provided in this Agreement, form, join or act in concert with any way participate in partnership, limited partnership, syndicate or other group, including a “group” within the meaning of as defined pursuant to Section 13(d)(313(d) of the Exchange Act and the rules promulgated thereunder with any entity or person unaffiliated with Investor and with respect to any voting securities of the Company;Voting Securities; EXECUTION VERSION
(ivd) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, make or in any way participate, directly or indirectly, in any financing for the purchase tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of two percent (2%) a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by extraordinary transaction involving the Company or any of its Affiliates;
subsidiaries or its or their securities or assets (vieach, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict Investor from tendering shares, receiving payment for shares or otherwise actparticipating 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); or 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 regarding any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation the types of or other transaction to or with the Company or otherwise matters set forth above in this paragraph;
(i) seek, 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 controlthe Board, change except as otherwise permitted in this Agreement, or influence (ii) seek, alone or in concert with others, the management, board removal of directors or policies any member of the Board, provided, however, that nothing in this Agreement shall prevent Investor or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting so long as such actions do not create a public disclosure obligation for Investor or the Company or nominate any Person as and are undertaken on a director who is not nominated by the then incumbent directors, or propose any matter basis reasonably designed to be voted upon by the shareholders of the Companyconfidential and in accordance in all material respects with Investor’s normal practices in similar circumstances;
f) make or be the proponent of any stockholder proposal (viipursuant to Rule 14a-8 under the Exchange Act or otherwise);
g) make any request for stock list materials or other books and records of the Company under the Maryland General Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
h) make any public proposal with respect to amend(i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization of the Company, (iii) any other material change in the Company’s management, business or corporate structure, or (iv) any waiver, amendment or modification to the Company’s Certificate of Incorporation or bylaws, or other actions which may affect or impede the acquisition of control of the Company by any person;
i) enter into any negotiations, agreements or understandings with any Third Party to take any action that Investor is prohibited from taking pursuant to this paragraph 13; or
j) make any public request or submit any public proposal, directly or indirectly, to amend or waive the terms of this Agreement, in each case which would reasonably be expected to result in a public announcement of such request or terminate any provision of Section 2.3(a)proposal; EXECUTION VERSION provided, that the restrictions in this clause paragraph 13 shall terminate automatically upon the earliest of (i) as a non-exclusive remedy for any material breach of this Agreement by the Company (including, without limitation, a failure to appoint the Investor Nominee or Additional New Director and otherwise constitute the Board in accordance with paragraph 1, a failure to appoint a replacement in accordance with paragraph 6, or a failure to issue the Company Press Release in accordance with paragraph 11), upon ten (10) business days’ prior written notice by Investor following any such material breach of this Agreement by the Company if such breach has not been cured within such notice period, provided that Investor is not in material breach of this Agreement at the time such notice is given, (ii) the announcement by the Company of a definitive agreement with respect to any Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities or all or substantially all of the Company’s assets, and (iii) the commencement of any tender or exchange offer (by a person other than Investor or its Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer. During the Restricted Period, the Company shall not prohibit a Shareholder from making a confidential request or proposal adopt and shall not propose the adoption of any amendment to the Chief Executive Officer Certificate of Incorporation or Chairman of the Board bylaws of the Company seeking that would reasonably be expected to impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future Company Annual Meeting of Stockholders, and nothing contained in this paragraph 13 shall prevent Investor from (i) privately communicating with the Company or the Board, (ii) making any public or private statement or announcement with respect to an amendment Extraordinary Transaction that is publicly announced by the Company or waiver a Third Party, and (iii) publicly commenting on any earnings announcement of the provisions of this Section 2.3, which the Company may accept or reject in its sole discretion, so long as any such request communication is made non-disparaging and otherwise not in a manner that does not require public disclosure thereof; or
(viii) take any action that might result in the Company having to make a public announcement regarding violation of any of the matters referred provisions in this paragraph 13. Nothing in this Agreement shall prevent the Company from responding to in clauses (i) through (vii) such Investor statements, subject to the obligations of Section 2.3(a)the Parties under paragraph 14, or announce an intention the Company or Investor from responding to doany factual statement as required by applicable legal process, subpoena, or enter into legal requirement or as part of a response to a request for information from any arrangement governmental authority with jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of discretionary acts by Investor or understanding or discussions with others to do, any of its Affiliates or by the actions restricted Company or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights any of its Common Shares Affiliates, as applicable). Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 13 shall prohibit or Series A Preference Shares restrict the Investor Nominee or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise Additional New Director from exercising his or her legal rights and fiduciary duties as a director of the Company or otherwise act in restrict his or her capacity as a member discussions solely among other members of the Board.Board and/or management, advisors, representatives or agents of the Company. EXECUTION VERSION
Appears in 1 contract
Samples: Cooperation Agreement
Standstill. Between the Execution Date and the fourth anniversary of the Execution Date, except as expressly authorized by Section 1 above during the Interim Period, each member of the Sweet 13D Group (including McKinley solely in his individual capacity but excluding the obligatxxxx xx subsection (a)(ii) and (a) Until the later of (xiii) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their rightbelow), each Shareholder agrees thatthat it and its respective Affiliates shall not, without the prior approval written consent of the Board, such Shareholder will not, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquirewhich consent may be withheld in its sole and absolute discretion, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;Person:
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(ivi) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange purchase or otherwise, Beneficial Ownership of any Spectranetics Securities (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, options or warrants for any Spectranetics Securities, except as may be employed through hedging or similar risk management strategies), other than the Spectranetics Securities that such Person Beneficially Owns as of the date hereof as referenced in Section 12(c) of this Settlement Agreement, provided, however, that McKinley may acquire additional common stock on the open market to txx xxxxxt that his total Beneficial Ownership does not exceed 300,000 shares of Common Stock; (ii) encourage any Person to acquire, or (iii) advise any Person with respect to the acquisition or proposed acquisition of, Spectranetics Securities other than attempts to dispose of such aforementioned Spectranetics Securities that such Person Beneficially Owns as of the date hereof; provided, however, that this Section (a) shall not apply to acquisitions resulting from (x) the exercise of the vested options held by Largey, Samek or Sweet; or (y) stock splits, reverse stock splits or xxxxx rxxxxxsifications affecting all outstanding Spectranetics Securities (or any class(es) thereof) or stock dividends or other pro rata distributions by Spectranetics or its direct or indirect subsidiaries to acquire all holders of Spectranetics Securities (or any assets class(es) thereof) or from exercise of any rights so distributed;
b) solicit, encourage any other Person to solicit, advise any Person with respect to the Solicitation of, or in any other way participate in, endorse or facilitate any Solicitation of, Proxies or consents with respect to any Spectranetics Securities, or become a Participant, or otherwise engage in any Solicitation of Proxies or consents (A) with respect to any matter submitted or to be submitted to the vote of the holders of any Spectranetics Securities at any annual or special meeting or by written consent, including, without limitation, with respect to the election of Directors of Spectranetics in opposition to the nominees recommended by the Board or otherwise for the purpose of influencing or acquiring control of the management of Spectranetics, or (B) for the purpose of calling a special meeting of Spectranetics' stockholders or the holders of any Spectranetics Securities;
c) advise or seek to advise any Person with respect to the voting of any Spectranetics Securities;
d) submit, encourage any other Person to submit, advise or assist any Person with respect to the submission of, or otherwise participate in, or endorse, or facilitate any nominations or proposals to Spectranetics or to the holders of Spectranetics Securities for consideration by the holders of any Spectranetics Securities at any annual or special meeting of such holders or in any action to be taken by written consent pursuant to Spectranetics' charter or bylaws, Rule 14a-3 under the Exchange Act, the provisions of any document governing the terms of any such Spectranetics Securities or governing the rights of the holders thereof, or otherwise;
e) otherwise take any action to request a special meeting of the holders of any Spectranetics Securities;
f) request, or take any action to obtain or retain, any list of holders of Common Stock;
g) deposit any Spectranetics Securities in a voting trust or subject them to a voting agreement or other agreement or arrangement of similar effect or otherwise join or form a partnership, limited partnership, limited liability company, syndicate or other Group (except insofar as a Group consisting solely of the members of the Sweet 13D Group shall be deemed to exist at the Execution Date) for the purpose of acquiring, holding, voting or disposing of any Spectranetics Securities, or for the purpose of circumventing or avoiding any of the provisions of this Settlement Agreement, encourage, advise or assist any Person to do any of the foregoing;
h) engage in, or offer, agree or propose to engage in, any acquisition of the Company or any substantially all of its Affiliates, except for such assets (other than to participate therein as are then being offered for sale by the Company a stockholder on terms generally available to all of Spectranetics' stockholders); or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for any such transaction or for the purchase of two percent (2%) or more by any person of any voting securities of the Company Spectranetics Securities or any securities convertible into or exchangeable or exercisable for two percent assets of Spectranetics;
i) otherwise act (2%x) or more to seek representation on the Board, (y) to seek the removal of any voting securities members of, or assets a change in the composition or size of, the Board, or (z) to acquire control of the Company, except for such assets as are then being offered for sale by the Company Spectranetics or any of its Affiliatessecurities or assets, provided, however, that this subsection (z) shall not apply to acquisitions resulting from (i) the exercise of the vested options held by Largey, Samek or Ms. Sweet; or (ii) stock splits, reverse stock splixx xx otxxx reclassifications affecting all outstanding Spectranetics Securities (or any class(es) thereof) or stock dividends or other pro rata distributions by Spectranetics or its direct or indirect subsidiaries to all holders of Spectranetics Securities (or any class(es) thereof) or from exercise of any rights so distributed;
(vij) otherwise actpublicly disclose any intent, alone purpose, plan or in concert proposal with others, to seek to propose respect to the Company Company, its Board, management, policies, or affairs or any of its shareholders any amalgamation, merger, business combination, tender securities or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directorsassets, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in could require the Company having to make a any public announcement regarding disclosure relating to any of the matters referred to in clauses (isuch intent, purpose, plan or proposal; or
k) through (vii) of Section 2.3(a)assist, or announce an intention to doadvise, encourage, facilitate or enter into any agreement or arrangement to assist or understanding or discussions with others to doadvise, any other Person in taking any action referenced in any of the actions restricted or prohibited under clauses (iSections 9(a) through (viij) of Section 2.3(a)above.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. (a) Until The Investor agrees that during the later Standstill Period, it shall not, and shall cause each of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will notits Affiliates not to, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectlyin any manner, alone or in concert with others, by purchase or otherwise, two percent (2%) or more others take any of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities following actions without the prior consent of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;:
(iia) except as otherwise expressly provided in this Agreementmake, makeengage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote proxies (as such terms are used in the proxy rules of the SEC promulgated pursuant but without regard to Section 14 of the Exchange Actexclusion set forth in Rule 14a-1(l)(2)(iv)), whether subject toor consents to vote with respect to any consent of holders of Common Stock, or exempt from the federal proxy rules, seek to advise advise, encourage or influence in any manner whatsoever any Person person with respect to the voting of any voting securities of the Company for the election of individuals to the Board of Directors or seek to propose approve any proposals submitted to influence, advise, change or control a vote of the management, board of directors, policies, affairs or strategy stockholders of the Company that have not been authorized and approved, or recommended for approval, by way the Board of Directors, or 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, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of Directors at any stockholder meeting, or make or be the proponent of any public communication stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or other communications to securityholders intended for such purposeotherwise);
(iiib) except as otherwise expressly provided in this Agreement, form, join join, encourage, influence, advise or in any way participate in a any “group” within the meaning of (as such term is defined in Section 13(d)(3) of the Exchange Act Act) with any persons who are not its Affiliates with respect to any voting securities of the CompanyCompany or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly permitted by this Agreement;
(ivc) 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 (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities that would result in the Investor (i) together with its Affiliates), owning more than 19.9% of the Company’s Common Stock. For purposes of this Section, no securities Beneficially Owned by a portfolio company of the Investor or its Affiliates will be deemed to be Beneficially Owned by the Investor or any of its Affiliates only so long as (x) such portfolio company is not an Affiliate of the Investor for purposes of this Agreement, (y) neither the Investor nor any of its Affiliates has encouraged, instructed, directed, supported, assisted or advised, or coordinated with, such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither the Investor or any of its Affiliates is a member of a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with that portfolio company with respect to any securities of the Company;
(d) offer or propose to effect, or intentionally assist or facilitate any other person to offer or propose to effect any tender or exchange offer, merger, consolidation, acquisition, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or substantially all assets, tangible liquidation, dissolution or intangible, of other extraordinary transaction involving the Company or any of its Affiliates Subsidiaries or joint ventures or any of their respective securities (ii) direct or indirect rightseach, warrants or options to acquire any assets of an “Extraordinary Transaction”); provided, however, that this clause shall not preclude the Company vote by the Investor or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more Affiliates of any voting securities of the Company with respect to any Extraordinary Transaction in accordance with the recommendation of the Board of Directors;
(e) (i) call or seek to call any securities convertible into or exchangeable or exercisable for two percent (2%) or more meeting of any voting securities or assets stockholders of the Company, including by written consent, (ii) seek representation on the Board of Directors, except for such assets as are then being offered for sale by expressly set forth herein, (iii) seek the Company removal of any member of the Board of Directors, (iv) solicit consents from stockholders or any of its Affiliates;
(vi) otherwise act, alone act or in concert with others, to seek to propose act by written consent with respect to the Company or any Company, (v) conduct a referendum of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies stockholders of the Company or nominate (vi) make a request for any Person as a director who is not nominated by stockholder list, whether pursuant to Section 220 of the then incumbent directors, DGCL or propose otherwise;
(f) take any matter to be voted upon by action in support of or make any proposal or request that constitutes (i) controlling or changing the shareholders Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, or (ii) any other material change in the Company’s management, business or corporate structure;
(viig) make or issue, or cause to be made or issued, any request public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of Directors, the Company seeking an amendment Company, its management, policies or waiver affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Section 2.3, 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 thereofforegoing; or
(viiih) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or publicly announce an intention to do, or to enter into any arrangement discussions, negotiations, agreements or understanding or discussions understandings with others to doany third-party with respect to, any of the actions restricted foregoing, or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability advise, assist, knowingly encourage or seek to vote (subject persuade any third-party to Section 1.2 above), Transfer (subject take any action or make any statement with respect to Section 2.4 below), convert (subject to Section 7 any of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Boardforegoing.
Appears in 1 contract
Samples: Standby Equity Purchase Agreement (Aeva Technologies, Inc.)
Standstill. (a) Until Subject to Section 3(c), Mr. Sight agrees that that during the later of (x) period commencing on the three (3)-year date hereof and ending on the date that is 150 days before the first anniversary of the Closing and (y) date of the date on which no nominee designated by proxy statement mailed to the Majority Approved Holders serves on Company’s stockholders in connection with the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that2008 Annual Meeting, without the prior approval written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, such Shareholder he will not, directly and will cause each of his agents and other Persons, including any Affiliates or indirectlyAssociates, acting on his behalf, not to:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangeengage, or in any way participate, directly or indirectly, in any financing for “solicitation” (as such term is defined in Rule 14a-1(l) promulgated by the purchase SEC under the Securities Exchange Act of two percent 1934, as amended (2%the “Exchange Act”)) of proxies or more consents (whether or not relating to the election or removal of directors) from any stockholders of the Company; advise, encourage or influence any Person (as herein defined) with respect to the voting of any voting securities Voting Securities with respect to the 2008 Annual Meeting or any other meeting of the Company’s stockholders that occurs prior to the termination of this Agreement in a manner that is inconsistent with the terms of this Agreement; nominate or propose any person for election to the Board; or initiate, propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) stockholders of the Company for the approval of any stockholder proposal whether made pursuant to Rule 14a-8 or any securities convertible into Rule 14a-4 or exchangeable or exercisable for two percent (2%exempt solicitations pursuant to Rule 14a-2(b)(1) or more Rule 14a-2(b)(2) under the Exchange Act or otherwise induce or encourage any other Person to initiate any such stockholder proposal; or otherwise communicate with the Company’s stockholders or others pursuant to Rule 14a-1(1)(2)(iv) under the Exchange Act;
(ii) seek or propose, or make any statement 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 that Mr. Sight may seek or assets propose a sale or purchase of the Companyshares of the Company beneficially owned by Mr. Sight as of the date hereof), except for such assets as are then being offered for sale by dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any of its Affiliates;
(viiii) otherwise form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than a “group” that includes all or some lesser number of the Persons identified as “Reporting Persons” in the Sight 13D, but does not include any other members who are not currently identified as Reporting Persons;
(iv) act, alone or in concert with others, to control or seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence or seek to influence, the management, board of directors Board or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(v) other than as previously disclosed in the Sight 13D, 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, except as expressly set forth in this Agreement;
(vi) knowingly enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing, or make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing;
(vii) make discuss or communicate any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal information with respect to the Chief Executive Officer or Chairman Company and its business, including but not limited to information related to the evaluation of any strategic alternatives under consideration by the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofBoard; orand
(viii) take or cause or induce others to take any action that might result in the Company having to make a public announcement regarding inconsistent with any of the matters referred foregoing.
(b) Mr. Sight hereby waives any right (whether by statute or agreement) to inspect records and lists of Company stockholders (including any list of non-objecting beneficial owners) in connection with the 2008 Annual Meeting.
(c) Nothing in Section 3(a) shall prevent Mr. Sight from soliciting proxies or taking any other action with respect to the Company’s 2009 annual meeting of stockholders. Nothing in clauses (iii), (iv) through or (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i3(a) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act shall prevent Mr. Sight from acting in his or her capacity as a member director and consistent with his fiduciary duties in that capacity, provided Mr. Sight does not, directly or indirectly, cause or permit any public dissemination or disclosure of any such activity apart from disclosure made by the Company pursuant to authorization of the Board.
Appears in 1 contract
Samples: Settlement Agreement (Feldman Mall Properties, Inc.)
Standstill. During the Restricted Period, the Investor Group will not, and will cause the other Restricted Persons acting on behalf or at the direction of any member of the Investor Group not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement or as otherwise authorized by the Board):
(a) Until with respect to Company or the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Voting Securities, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, knowingly encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 (as defined below), including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”)), whether subject to, of proxies or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person consents with respect to the voting election or removal of directors in any manner or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents; (iii) seek to advise, knowingly encourage or influence any Person, or assist any Person in so encouraging, advising or influencing any Person, with respect to the giving or withholding of any voting securities of the Company or seek to propose to influenceproxy, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication consent or other communications authority to securityholders intended for vote or act (other than such purposeencouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter, if applicable); (iv) initiate, knowingly encourage or participate in any “vote no,” “withhold” or similar campaign; or (v) conduct any nonbinding referendum or hold a “stockholder forum”;
(iiib) except initiate, propose or otherwise “solicit” (as otherwise expressly provided such term is used in this Agreement, form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) proxy rules of the Exchange Act with respect to SEC, including any voting securities solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(ivc) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to controlnominate or propose the nomination of or recommend the nomination of, change any candidate to the Board; or influence (iii) seek, alone or in concert with others, or encourage any Person to seek, the management, board removal of directors or policies any member of the Company Board;
(d) (i) call or nominate seek to call a special meeting of Company’s stockholders, or encourage any Person as to call a director who is not nominated special meeting of Company’s stockholders; (ii) act or seek to act by the then incumbent directors, written consent of stockholders; or propose (iii) make a request for any matter to be voted upon by the shareholders stockholder list or other records of the Company;
(viie) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(i) make any request offer or proposal (with or without conditions) with respect to amendany tender offer, waive exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or terminate similar extraordinary transaction involving Company, any provision of Section 2.3(a)its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any Restricted Person; provided(ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) prior to Company announcing an Extraordinary Transaction, publicly comment to any Third Party on any proposal regarding any Extraordinary Transaction (it being understood that this clause shall (g) will not prohibit restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company or from participating in any such transaction in a Shareholder from making a confidential request or proposal manner approved by the Board, subject to the Chief Executive Officer other terms of this Agreement);
(g) institute, solicit, assist or Chairman join, as a party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of the Board of the Company seeking an amendment their respective current or waiver of former directors or officers (including derivative actions), except that this clause (h) will not prevent any Restricted Person from (i) bringing litigation to enforce the provisions of this Section 2.3Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, which or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the Company may accept subject matter of this Agreement; (iv) exercising statutory appraisal rights; or reject in its sole discretion, so long as any such request is made in (v) responding to or complying with a manner that does not require public disclosure thereof; orvalidly issued legal process;
(viiih) take any action in support of, or make any proposal or request that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses constitutes: (i) through controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (viiii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company 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 Company to become eligible for termination of registration pursuant to Section 12(g)(4) of Section 2.3(a)the Exchange Act;
(i) sell, offer or announce an intention agree to dosell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(j) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or swap transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of Company, or enter into any stock borrowing, stock pledging or stock lending arrangement or understanding agreement with respect to securities of Company;
(k) other than through non-public communications with Company that would not reasonably be expected to trigger public disclosure obligations for any Party, make or discussions disclose any statement regarding any intent, purpose, plan or proposal with others respect to dothe Board, Company or its management, policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or that would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that would reasonably be expected to require Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(l) compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company (other than pursuant to ordinary course compensation arrangements related to the New Director’s service as an employee of any member of the Investor Group) with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities (it being understood that, notwithstanding anything to the contrary in this Agreement and notwithstanding any termination of this Agreement, the restrictions on the Investor Signatories and the other Restricted Persons contemplated by this clause (m) will be operative so long as the New Director is serving on the Board);
(m) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any of Third Party to take any action that the actions restricted or Restricted Persons are prohibited under clauses (i) through (vii) of Section 2.3(a).from taking pursuant to this Agreement;
(bn) Nothing in Section 2.3(a) will limit acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the Shareholder’s ability to vote acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board including a “group” as defined pursuant to Section 1.1 to vote 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Investor Group in the aggregate owning, controlling or otherwise exercise his having any beneficial or her legal duties or otherwise act in his or her capacity as other ownership interest of any additional Voting Securities (including, for purpose of this calculation, all Voting Securities that a member of the BoardInvestor Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities) in excess of those owned by the Investor Group as of the date of this Agreement (it being understood that the following will not be deemed to violate this clause (o): (i) the receipt by the New Director from Company of any ordinary course compensation in the form of Voting Securities (or securities exercisable for Voting Securities); and (ii) the pro rata acquisition of securities of Company or any rights decoupled from the underlying securities of Company pursuant to any stock splits, stock dividends, reclassifications, recapitalizations, combinations or rights issuances (including the pro rata acquisition of securities upon the exercise of such rights) in respect of securities of the Company beneficially owned by the Investor Group; or
(o) other than through open market broker sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell, through swap or hedging transactions or otherwise, any securities of Company to any Third Party that, to the knowledge of any member of the Investor Group (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause (p) will not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of activism or known plans to engage in activism).
Appears in 1 contract
Standstill. (a) Until the later of date that is eighteen (x18) the three (3)-year anniversary of the Closing and (y) months after the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are Purchaser Representative is no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)4.5, each Shareholder the Purchaser agrees that, without the prior approval of the BoardBoard of Directors, such Shareholder the Purchaser will not, directly or indirectly:
(i) acquire, offer through its subsidiaries or propose to acquireany other Persons, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with othersany Person, by or as a “group” (as defined in Section 13 of the Exchange Act) with any Person:
(a) purchase, offer to purchase, or agree to purchase or otherwise, two percent (2%) or more of any direct or indirect otherwise acquire “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of any Class A Common SharesStock or Class B Common Stock, or any securities convertible or exchangeable into Class A Common Shares Stock or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the CompanyClass B Common Stock, excluding any shares of Class A Common Shares Stock, Convertible Preferred Stock or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company Convertible Preferred Stock or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this AgreementDocuments;
(iib) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” solicitation of “proxies” proxies to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject tovote, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person person with respect to the voting of of, any voting securities of the Company or any of its Subsidiaries, or seek to or propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose, except, in each case, with respect to any Requisite Stockholder Approval;
(iiic) except as otherwise expressly provided in this Agreementmake a proposal for, formor offer of (with or without conditions) any acquisition of or extraordinary transaction involving the Company or any of the Company’s Subsidiaries or any of their respective securities or assets;
(d) effect 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 Stock or Preferred Stock) 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 the Company;
(iv) acquirecontrol transaction, offer to acquire recapitalization, restructuring, liquidation or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of similar transaction involving the Company or any of its Affiliates Subsidiaries; or
(e) enter into any discussions, negotiations, arrangements or (ii) direct understandings with or indirect rightsform a group with, warrants any third party in connection with such third party’s taking, planning to take, or options seeking to acquire take any assets of the Company actions prohibited by clauses (a) through (d) of this Section 4.1 or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change control or influence the management, board Board of directors Directors or the management or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directorsCompany, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a)including its Subsidiaries; provided, however, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of nothing in this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) 4.1 will limit the Shareholder(I) any Carlyle Party’s ability to vote (subject to Section 1.2 above), 4.5(c) and the other Transaction Documents) or Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate4.2) its Common Stock or Preferred Stock or otherwise exercise rights of under its Common Shares Preferred Stock or Series A Preference Shares or (II) the ability of any director designated by the Shareholders’ director designee elected to the Board Purchaser Representative pursuant to Section 1.1 4.5 or elected pursuant to the Series A-1 Certificate to vote or otherwise exercise his or her legal its fiduciary duties or otherwise act in his or her capacity as a member of the BoardBoard of Directors, (III) the ability of any observer or director appointed or designated by the Purchaser Representative pursuant to Section 4.5 or pursuant to the Series A-1 Certificate to seek (but solely in such capacity as observer or director) to participate fully as an observer to or director on the Board of Directors, or (IV) the ability of the Purchaser Representative or the holders of Convertible Preferred Stock to exercise their rights to appoint directors and observers pursuant to Section 4.5 or the Series A-1 Certificate, as applicable.
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) For a period ending on the date on which no nominee designated Quicksilver ceases to hold at least 10% of the units, Quicksilver will agree to the following standstill provisions that prohibit Quicksilver from:
(i) engaging in any hostile/takeover activities (including tender offer; soliciting proxies or written consents - other than as recommended by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled Board);
(ii) acquiring or proposing to designate any directors for nomination acquire additional units, securities or properties of BreitBurn, except pursuant to Section 1.1 a distribution, reclassification or reorganization involving BreitBurn or its units or other securities approved by the Board;
(iii) calling a special meeting of the unitholders; or
(iv) proposing to remove the GP or have irrevocably waived their right), each Shareholder agrees that, without voting for removal of the GP other than in accordance with paragraph 12.
(b) Specifics. Without the prior approval written consent of the BoardBreitBurn, such Shareholder Quicksilver will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, acquire any securities convertible or exchangeable into Common Shares property of BreitBurn (or direct its affiliates), except pursuant to a distribution, reclassification or indirect rights, warrants reorganization involving BreitBurn or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares its units or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions approved by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this AgreementBoard;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, propose to enter into (directly or indirectly) any merger/consolidation/recap/business combination/partnership/JV, alone etc. involving BreitBurn (or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Actits affiliates), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeexcept as permitted hereby;
(iii) except as otherwise expressly provided in this Agreement, form, join make or in any way participate in any solicitation of proxies (per SEC’s proxy rules) or written consents to vote/seek to influence/advise others with respect to the voting BreitBurn’s (or its affiliates’) voting securities;
(iv) form/join/participate in a “group” within the meaning of Section 13(d)(3(per SEC’s Sec 13(d) of the Exchange Act rules/defs) with respect to any voting securities of the Company;
BreitBurn (iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliatesaffiliates);
(v) arrange, act to seek to control or in any way participate, directly influence the management/Board/policies of BreitBurn except through Quicksilver’s Board designees or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatesprovided below;
(vi) otherwise act, alone or in concert with others, to seek to propose to remove the Company or any GP of its shareholders any amalgamationBreitBurn or, mergerother than in accordance with paragraph 12, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction vote to or with remove the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the CompanyGP;
(vii) make publicly disclose any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that intent/plan/arrangement inconsistent with this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofagreement; or
(viii) take any action that might result advise/assist/encourage others in connection with the Company having above.
(c) Quicksilver will agree not to make a public announcement regarding any sell/transfer its units without the prior written consent of the matters referred to in clauses BreitBurn, except:
(i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any a party that would not own more than 20% of the actions restricted outstanding units after such transfer;
(ii) in connection with a business combination approved by the Board and/or the BreitBurn unitholders;
(iii) in a pledge of any voting securities to a financial institution/brokerage firm; or
(iv) in an underwritten offering where the units will be widely distributed or prohibited under clauses would not result in any purchaser in such offering owning more than 20% of the outstanding units after the offering.
(d) The foregoing provisions shall not, and are not intended to:
(i) through prohibit Quicksilver from privately communicating with, including making any offer or proposal to, the Board;
(viiii) restrict in any manner how Quicksilver votes its units, except as provided in paragraphs 11 and 12;
(iii) restrict the manner in which Quicksilver’s designees to the Board (A) may vote on any matter submitted to the Board or the unitholders, or (B) participate in deliberations or discussions of Section 2.3(a)the Board (including making suggestions or raising issues to the Board) in their capacity as members of the Board, or (C) may take actions required by their exercise of legal duties and obligations as members of the Board or refrain from taking any action prohibited by their legal duties and obligations as members of the Board; or
(iv) restrict Quicksilver from selling or transferring any of its units to any affiliate or successor of Quicksilver which agrees to be bound by the standstill agreement.
(be) Nothing The provisions contained in Section 2.3(a) will limit paragraph 9 shall immediately and automatically be suspended upon the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 increase or acceleration of a material financial obligation of BreitBurn that results from the Series A Certificate) or otherwise exercise rights breach of its Common Shares or Series A Preference Shares a material provision thereof or the ability occurrence of a material event of default thereunder, unless such breach is caused solely by the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote action or otherwise exercise his inaction of Quicksilver or her legal duties or otherwise act in his or her capacity as a member of the Boardits nominated directors.
Appears in 1 contract
Samples: Settlement Agreement (BreitBurn Energy Partners L.P.)
Standstill. During the Term, with respect to the Company, Barington shall not, and shall cause its Affiliates and Associates and any Person acting on behalf of or in concert with Barington or any of its Affiliates or Associates (aeach, a “Barington Representative”) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will notnot to, directly or indirectly:
a. engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act, but, with respect to the term “solicitation”, without regard to the exclusion set forth in Rule 14a-1(l)(2), except for the exclusion set forth in Rule 14a-1(l)(2)(iv)(B)) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders), in each case, with respect to the securities of the Company;
b. knowingly encourage, advise or influence any other Person, or knowingly assist any other Person in encouraging, advising or influencing any other Person, (i) acquire, offer with respect to the voting or propose to acquire, solicit an offer to sell the giving or agree to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more withholding of any direct proxy, consent or indirect other authority to vote involving the Company or the taking of any other action with respect to a Barington Representative’s Voting Securities or (ii) in conducting any type of referendum, binding or non-binding, involving the Company, in each case of the foregoing other than such encouragement, advice or influence that is consistent with the Company management’s recommendation in connection with such matter;
c. form, join or participate in any way in any “beneficial ownershipgroup” (as defined in Rule 13d-3 and Rule 13d-5 under pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options with respect to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting the securities of the Company, excluding except that nothing in this Agreement will limit the ability of an Affiliate, Associate or investment advisory client of Barington to join the Barington “group” following the execution of this Agreement so long as any Common Shares such Affiliate, Associate or other securities acquired pursuant investment advisory client agrees to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions be bound by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 terms and conditions of this Agreement;
(ii) except as otherwise expressly provided in Agreement including this AgreementSection 4; d. initiate, makeencourage, seek to effect or in any way participate in, directly assist with or indirectly, alone facilitate any offer or in concert proposal (with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Actor without conditions), or negotiations, agreements or understandings whether subject toor not legally enforceable, with respect to a merger, acquisition, tender offer, exchange offer, business combination, share exchange, recapitalization, restructuring, liquidation, dissolution, disposition, asset sale or exempt from other similar transaction involving the federal proxy rulesCompany or any of its subsidiaries or any material portion of its or their businesses (each, seek to advise or influence a “Business Transaction”);
e. deposit any Voting Securities in any manner whatsoever voting trust or subject any Person Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities, other than any such voting securities of the Company trust, arrangement or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeagreement solely among Barington and otherwise in accordance with this Agreement;
(iii) except as otherwise expressly provided in this Agreement, form, join or in x. xxxxx any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act proxy with respect to any voting securities Voting Securities (other than to a designated representative of the Company pursuant to a proxy statement of the Company) or take any action requiring a Barington Representative to report beneficial ownership of Voting Securities on Schedule 13D under the Exchange Act;
g. initiate, encourage or participate in any (ivA) acquire, offer nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwisethe Company, (iB) any of other action with respect to the assets, tangible election or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more removal of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets directors of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(viC) otherwise acteffort, alone or in concert with others, to seek obtain representation on the Board or (D) referendum of Shareholders;
h. make or be the proponent of any shareholder proposal (pursuant to propose to Rule 14a-8 under the Company Exchange Act or otherwise) for consideration by the Shareholders;
i. make any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of request for stockholder list material or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders books and records of the Company;
(vii) j. unless required by law, rule or regulation, make or issue or cause to be made or issued any public disclosure, announcement or statement concerning the Company or aimed at influencing the management or direction of the Company; provided, however, that without limiting Section 5, this Section 4 shall not prevent Barington from publicly commenting on any merger, consolidation, business combination or other material Business Transaction of the Company, or any amendment of the Company’s Articles of Incorporation or Bylaws;
k. enter into any negotiations, agreements or understandings with any third party to take any action that any Barington Representative is prohibited from taking pursuant to this Section 4; or l. make any request or submit any proposal to amend, amend or waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions terms of this Section 2.3Agreement, in each case 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; or
(viii) take any action that might would reasonably be expected to result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), such request or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)proposal.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. During the Restricted Period, Axxx Xxx will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Until with respect to Company or the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Voting Securities, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 Securities and Exchange Commission (the “SEC”), including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”), whether subject to, ) of proxies or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person consents with respect to the voting election or removal of directors or any voting securities other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Company SEC) in any such solicitation of proxies or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
consents; (iii) except as otherwise expressly provided seek to advise, encourage or influence any Person, or assist any Person in this Agreementso encouraging, formadvising or influencing any Person, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the giving or withholding of any voting securities of proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Company;
Board’s recommendation in connection with such matter, if applicable); or (iv) acquireinitiate, offer to acquire encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) “vote no,” “withhold” or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessimilar campaign;
(vib) initiate, propose or otherwise act“solicit” (as such term is used in the proxy rules of the SEC, alone including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or in concert Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with others, respect to seek to propose to the Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of its shareholders “proxy access”; or (iii) conduct any amalgamation, merger, business combination, tender nonbinding referendum or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise hold a “stockholder forum”;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to controlnominate or propose the nomination of or recommend the nomination of, change any candidate to the Board; or influence (iii) seek, alone or in concert with others, or encourage any Person to seek, the management, board removal of directors or policies any member of the Company Board;
(i) call or nominate seek to call a special meeting of stockholders, or encourage any Person as to call a director who is not nominated special meeting of stockholders; (ii) act or seek to act by the then incumbent directors, written consent of stockholders; or propose (iii) make a request for any matter to be voted upon by the shareholders stockholder list or other records of the Company;
(viif) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(g) (i) make any request offer or proposal (with or without conditions) with respect to amendany tender offer, waive exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or terminate similar extraordinary transaction involving Company, any provision of Section 2.3(a)its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any Restricted Person; provided(ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) prior to such proposal becoming public, publicly comment on any proposal regarding any Extraordinary Transaction by a Third Party (it being understood that this clause shall (g) will not prohibit restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, assist or join, as a Shareholder party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that the foregoing will not prevent any Restricted Person from making a confidential request or proposal (i) bringing litigation to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or (v) responding to or complying with a validly issued legal process;
(i) take any action in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company 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 Company to become eligible for termination of registration pursuant to Section 2.312(g)(4) of the Exchange Act;
(j) sell, which offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(k) engage in any short sale or similar transaction with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of Company may accept (it being understood that the restrictions in this clause (k) will not apply to the sale of put options or reject in other option-related contracts);
(l) other than through non-public communications with Company that would not reasonably be expected to trigger public disclosure obligations for any Party, make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board, Company or its sole discretionmanagement, so long as policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or that would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require Company to make any public disclosure relating to any such request is intent, purpose, plan, proposal or condition;
(m) make or cause to be made any statement that disparages, calls into disrepute, slanders, impugns, casts in a negative light or otherwise damages the reputation of Company or any of its Affiliates, Associates, subsidiaries, successors or assigns, or any of its or their respective current or former officers, directors, employees, stockholders, agents, attorneys, advisors or representatives, or any of its or their respective businesses, products or services, in any manner that does would reasonably be expected to damage the business or reputation of the other or its businesses, products or services (including any statements regarding Company’s strategy, operations, performance, products or services), it being understood that this clause (m) will not require public disclosure thereofrestrict the ability of any Restricted Person to (i) comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such Restricted Person; or (ii) enforce such Restricted Person’s rights pursuant to this Agreement;
(n) compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities;
(o) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(p) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Axxx Xxx Group in the aggregate owning, controlling or otherwise having any beneficial or other ownership interest of more than 9.9 percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that such member of the Axxx Xxx Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities); or
(viiiq) take any action that might result in other than through open market broker sale transactions where the Company having to make a public announcement regarding any identity of the matters referred purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to in clauses (i) sell, through (vii) swap or hedging transactions or otherwise, the securities of Section 2.3(a)Company to any Third Party that, or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a knowledge of any member of the BoardAxxx Xxx Group (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause (q) will not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of activism or known plans to engage in activism).
Appears in 1 contract
Samples: Agreement (Collectors Universe Inc)
Standstill. During the Restricted Period, Scalar Gauge will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Until with respect to Company or the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Voting Securities, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”), whether subject to, ) of proxies or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person consents with respect to the voting election or removal of directors or any voting securities other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Company SEC) in any such solicitation of proxies or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
consents; (iii) except as otherwise expressly provided seek to advise, encourage or influence any Person, or assist any Person in this Agreementso encouraging, formadvising or influencing any Person, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the giving or withholding of any voting securities of proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Company;
Board’s recommendation in connection with such matter, if applicable); or (iv) acquireinitiate, offer to acquire encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) “vote no,” “withhold” or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessimilar campaign;
(vib) initiate, propose or otherwise act“solicit” (as such term is used in the proxy rules of the SEC, alone including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or in concert Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with others, respect to seek to propose to the Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of its shareholders “proxy access”; or (iii) conduct any amalgamation, merger, business combination, tender nonbinding referendum or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise hold a “stockholder forum”;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to controlnominate or propose the nomination of or recommend the nomination of, change any candidate to the Board; or influence (iii) seek, alone or in concert with others, or encourage any Person to seek, the management, board removal of directors or policies any member of the Company Board;
(e) (i) call or nominate seek to call a special meeting of stockholders, or encourage any Person as to call a director who is not nominated special meeting of stockholders; (ii) act or seek to act by the then incumbent directors, written consent of stockholders; or propose (iii) make a request for any matter to be voted upon by the shareholders stockholder list or other records of the Company;
(viif) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(g) (i) make any request offer or proposal (with or without conditions) with respect to amendany tender offer, waive exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or terminate similar extraordinary transaction involving Company, any provision of Section 2.3(a)its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any Restricted Person; provided(ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) prior to Company announcing an Extraordinary Transaction, publicly comment on any proposal regarding any Extraordinary Transaction (it being understood that this clause shall (g) will not prohibit restrict any Restricted Person from (A) having ordinary-course-of-business discussions with current or potential investors in Company that would not otherwise violate this Agreement; (B) publicly supporting or opposing an Extraordinary Transaction involving any Third Party after Company has announced such Extraordinary Transaction; or (C) tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, assist or join, as a Shareholder party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that the foregoing will not prevent any Restricted Person from making a confidential request or proposal (i) bringing litigation to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or (v) responding to or complying with a validly issued legal process;
(i) take any action in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company 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 Company to become eligible for termination of registration pursuant to Section 2.312(g)(4) of the Exchange Act;
(j) sell, which offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(k) engage in any short sale or similar transaction with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of Company may accept (it being understood that the restrictions in this clause (k) will not apply to the sale of put options or reject other option-related contracts);
(l) other than through non-public communications that would not reasonably be expected to trigger public disclosure obligations for any Party, make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board, Company or its management, policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or that would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition; it being understood that this clause (l) will not restrict the ability of any Restricted Person to publicly comment on any proposal regarding any Extraordinary Transaction by a Third Party after Company has announced such Extraordinary Transaction;
(m) make or cause to be made any statement that disparages, calls into disrepute, slanders, impugns, casts in a negative light or otherwise damages the reputation of Company or any of its sole discretionAffiliates, Associates, subsidiaries, successors or assigns, or any of its or their respective current or former officers, directors, employees, stockholders, agents, attorneys, advisors or representatives, or any of its or their respective businesses, products or services, in any manner that would reasonably be expected to damage the business or reputation of the other or its businesses, products or services (including any statements regarding Company’s strategy, operations, performance, products or services), it being understood that this clause (m) will not restrict the ability of any Restricted Person to (i) comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such Restricted Person; or (ii) enforce such Restricted Person’s rights pursuant to this Agreement;
(n) enter into any economic relationship with any Person in respect of Company, or compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities (it being understood that, notwithstanding anything to the contrary in this Agreement and notwithstanding any termination of this Agreement, the restrictions on Scalar Gauge and the other Restricted Persons contemplated by this clause (n) will be operative so long as either of the New Directors is serving on the Board);
(o) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(p) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Scalar Gauge Group in the aggregate owning, controlling or otherwise having any beneficial or other ownership interest of more than 9.9 percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that a member of the Scalar Gauge Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such request is made in rights may be exercised and whether they are conditional and including economic ownership pursuant to a manner cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities), it being understood that does not require public disclosure thereofany holdings of securities of Company will be on a passive basis; or
(viiiq) take any action that might result in other than through open market broker sale transactions where the Company having to make a public announcement regarding any identity of the matters referred purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to in clauses (i) sell, through (vii) swap or hedging transactions or otherwise, the securities of Section 2.3(a)Company to any Third Party that, or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a knowledge of any member of the BoardScalar Gauge Group (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause (q) will not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of activism or known plans to engage in activism).
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary of date that is two years after the Closing and Date (y) such period being the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right“Standstill Period”), each Shareholder Holder agrees thatthat neither it nor any of its controlled affiliates, without acting alone or as part of a “group” (as defined under the prior approval of the BoardExchange Act), such Shareholder will notin any manner, directly or indirectly:
(i) acquiremake any public announcement with respect to, effect or seek, 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 (whether publicly or otherwise) to effect, two percent or cause or participate in or assist any other Person to effect or seek, offer or propose (2%whether publicly or otherwise) to effect or more participate in, (A) any acquisition of any direct securities (or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) thereof) of Common Sharesthe Company or any of its subsidiaries, any warrant or option to purchase such securities convertible or exchangeable into Common Shares all or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more a substantial portion of any voting securities the assets of the Company, excluding any Common Shares security convertible into any such securities, or any right to acquire such securities; (B) any tender or exchange offer or merger or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by business combination involving the Company or otherwise acquired pursuant any of its subsidiaries; (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Transaction Documents Company or any of its subsidiaries; or (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(iiD) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant SEC) or consents to Section 14 of the Exchange Act), whether subject tovote, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of of, any voting securities of the Company; provided that none of the actions contemplated by clause (A) of this paragraph (i) shall be deemed to occur solely due to (x) a stock split, reverse stock split, reclassification, reorganization or other transaction by the Company or seek to propose to influence, advise, change or control affecting any class of the management, board of directors, policies, affairs or strategy outstanding capital stock of the Company generally or (y) a stock dividend or other pro rata distribution by way the Company to holders of its outstanding capital stock;
(ii) make any public communication announcement with respect to, or effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or assist any other communications Person to securityholders intended for such purposeeffect or seek, offer or propose (whether publicly or otherwise) to effect or participate in any acquisition of all or a material portion of the assets of the Company or any of its subsidiaries;
(iii) except as otherwise expressly provided in this Agreementform, formadvise, join or in any way participate in a “group” within the meaning of Section 13(d)(3) group in connection with any of the Exchange Act with respect to any voting securities types of the Companymatters set forth in paragraphs (i) or (ii) above;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to control or influence the management, Board of Directors or policies of the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Companysubsidiaries;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viiiv) take any action that might result in which would reasonably be expected to require the Company having to make a public announcement regarding any of the types of matters referred to set forth in clauses paragraphs (i) through or (viiii) of Section 2.3(a)above; or
(vi) advise, assist or announce an intention to doencourage, or enter into any arrangement discussions, agreements or understanding or discussions arrangements with, any third party with others respect to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing in Section 2.3(a) will limit Each Holder also agrees during the Shareholder’s ability Standstill Period not to vote request the Company (subject to Section 1.2 aboveor its directors, officers, employees or agents), Transfer directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).
(c) For purposes of this Agreement, a Person shall also be deemed to have “beneficial ownership” of any securities that are the subject of a derivative transaction entered into by such Person, or derivative security acquired by such Person, which gives such Person the economic equivalent of ownership of an amount of such securities due to Section 2.4 below), convert (subject to Section 7 the fact that the value of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected derivative is explicitly determined by reference to the Board pursuant price or value of such securities, without regard to Section 1.1 whether (i) such derivative conveys any voting rights in such securities to vote such Person, (ii) the derivative is required to be, or otherwise exercise his capable of being, settled through delivery of such securities or her legal duties or otherwise act in his or her capacity as a member (iii) such Person may have entered into other transactions that hedge the economic effect of the Boardsuch derivative.
Appears in 1 contract
Samples: Registration Rights Agreement (Sandridge Energy Inc)
Standstill. During the Restricted Period, the Xxxxxxx Signatories will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Until with respect to Company or the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Voting Securities, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, knowingly encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 (as defined below), including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”), whether subject to, ) of proxies or exempt from consents with respect to the federal election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules, rules of the SEC) in any such solicitation of proxies or consents; (iii) seek to advise or influence in knowingly encourage any manner whatsoever Person, or knowingly assist any Person in so encouraging or advising any Person, with respect to the voting giving or withholding of any voting securities of the Company or seek to propose to influenceproxy, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication consent or other communications authority to securityholders intended for vote or act (other than such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join encouragement or in any way participate in a “group” within advice that is consistent with the meaning of Section 13(d)(3) of the Exchange Act with respect Xxxxxxx Signatories’ voting obligations pursuant to any voting securities of the Company;
paragraph 7); or (iv) acquireinitiate, offer to acquire knowingly encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) “vote no,” “withhold” or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessimilar campaign;
(vib) initiate, propose or otherwise act“solicit” (as such term is used in the proxy rules of the SEC, alone including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or in concert Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or knowingly encourage any Person to initiate or submit any such shareholder proposal;
(c) with others, respect to seek to propose to the Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or knowingly encourage any Person to take any action pursuant to, any type of its shareholders “proxy access”; or (iii) conduct any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise nonbinding referendum;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or knowingly encourage any Person to controlnominate or propose the nomination of or recommend the nomination of, any candidate to the Board; or (iii) seek, alone or in concert with others, or knowingly encourage any Person to seek, the removal of any member of the Board;
(e) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(i) make any public offer or proposal (with or without conditions) with respect to any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, sale of all or substantially all of Company’s assets, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving Company, any of its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any Restricted Person; (ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or knowingly encourage or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) publicly comment on any Extraordinary Transaction (it being understood that this clause (f) will not restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(g) take any action in support of, or publicly make any proposal or request that constitutes:
(i) controlling or changing the Board or management of Company, including any plans or proposals to change the number or influence the management, board term of directors or policies to fill any vacancies on the Board; (ii) controlling or changing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling or changing Company’s management, business or corporate structure;
(iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company 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 Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Company Exchange Act;
(h) sell, offer or nominate agree to sell to any Person as Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(i) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or swap transaction) with respect to any security (other than a director who is not nominated by broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the then incumbent directors, market price or propose any matter to be voted upon by the shareholders value of the securities of Company;
(viij) other than through non-public communications with Company that would not reasonably be expected to trigger public disclosure obligations for either Company or any member of the Xxxxxxx Group, make or disclose any request statement regarding any intent, purpose, plan or proposal with respect to amendthe Board, waive Company or terminate any provision of Section 2.3(a); providedits management, policies, affairs or assets, or the Voting Securities or this Agreement, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of is inconsistent with the provisions of this Section 2.3Agreement;
(k) compensate or enter into any agreement, which arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities (it being understood that, notwithstanding anything to the Company may accept or reject contrary in its sole discretionthis Agreement and notwithstanding any termination of this Agreement, the restrictions on the Xxxxxxx Signatories and the other Restricted Persons contemplated by this clause (k) will be operative so long as either of the New Directors is serving on the Board);
(l) other than with other Restricted Persons, enter into any such request is made negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or knowingly encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(m) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in a manner the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that does would result in the Xxxxxxx Group beneficially owning, controlling or otherwise having any voting interest over more than 9.9 percent of the then- outstanding Voting Securities (for the avoidance of doubt, notwithstanding anything to the contrary in this clause (m), the receipt by either of the New Directors from Company of any ordinary course compensation in the form of Voting Securities (or securities exercisable for Voting Securities) will not require public disclosure thereofbe deemed to violate this clause (m)); or
(viiin) take other than through open market broker sale transactions where the identity of the purchaser is not known or in underwritten widely dispersed public offerings, sell, offer, assign or otherwise dispose, or agree to sell, offer, assign or otherwise dispose, through swap or hedging transactions or otherwise, any action that might securities of Company to any Third Party that, to the knowledge of any member of the Xxxxxxx Group (after reasonable inquiry in connection with a private, non-open market transaction), would result in the Company such Third Party, together with its Affiliates and controlled Associates, beneficially owning, controlling or otherwise having to make a public announcement regarding any voting interest over more than 4.9 percent of the matters referred then-outstanding Voting Securities (it being understood that the restrictions in this clause (n) will not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of activism or known plans to engage in clauses activism). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement, including the restrictions in this paragraph 8, shall prohibit or restrict any Restricted Person from (i) making any true and correct statement to the extent required by applicable legal process, subpoena or legal requirement from any governmental authority with competent jurisdiction over such Restricted Person so long as such request did not arise as a result of any action by such Restricted Person; (ii) communicating privately with any director or executive officer of Company, or members of the investor relations team made available for communications involving broad-based groups of investors (including through (vii) of Section 2.3(aparticipation in investor meetings and/or conferences), or announce an intention on any matter so long as such communications would not reasonably be expected to dorequire public disclosure obligations for any party; (iii) stating how it intends to vote with respect to any Extraordinary Transaction that is publicly announced by Company and the reasons therefor, or enter into (iv) making or sending private communications to investors or prospective investors in any arrangement Restricted Person, provided that such statements or understanding or discussions with others communications (1) are based on publicly available information; (2) are not reasonably expected to do, any of be publicly disclosed and are understood by all parties to be confidential communications; and (3) are not intended to circumvent the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)restrictions in this Agreement.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Board Matters Agreement
Standstill. You agree that, for a period of twelve (12) months from the date of this Agreement, unless you receive the prior authorized approval of an authorized Isilon officer or director, you will not directly or indirectly (including, without limitation, by assisting or forming a group (a “l3D Group”) within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)):
(a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (acquire or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell seek, propose or agree to acquire, directly by means of a repurchase, tender or indirectlyexchange offer, alone business combination or in concert with othersany other manner, by purchase or otherwise, two beneficial ownership of five percent (25%) or more of any direct securities or indirect “beneficial ownership” assets of Isilon (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, including any securities convertible or exchangeable into Common Shares assets of Isilon that you or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more any of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate inyour controlled affiliates already, directly or indirectly, alone own) including, without limitation, rights or in concert with others, any “solicitation” of “proxies” options to vote acquire such ownership;
(as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, b) seek or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board Board of directorsDirectors, policiesgovernance or certificate of incorporation or bylaws, affairs or strategy including, without limitation, by means of a solicitation of proxies (as such terms are defined in Rule l4a-l of Regulation l4A promulgated pursuant to Section 14 of the Company by way Exchange Act, disregarding clause (iv) of Rule l4a-l(l)(2) and including any otherwise exempt solicitation pursuant to Rule l4a-2(b)) or participating in any election contest or seeking to influence, advise or direct the vote of any public communication or other communications to securityholders intended for such purposeholder of securities of Isilon;
(iiic) except as otherwise expressly provided in offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary transaction with respect to Isilon or any of its subsidiaries or businesses;
(d) make any request to amend or waive this Agreementprovision or any other provision of this paragraph (9);
(e) make any public disclosure, formor take any action which would reasonably be expected to require Isilon to make any public disclosure, 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 of the matters set forth in this Agreement; or
(f) enter into any discussions (excluding discussions with your Representatives), arrangements, understanding or agreement with any third party with respect to any of the foregoing, including, without limitation, forming, joining or otherwise participating in any l3D Group in connection with any of the foregoing. Confidentiality Agreement August 29, 2010 Notwithstanding the foregoing, the restrictions set forth in this paragraph (9) including (a-f) (i) shall not restrict you from making at any time a non-public offer or proposal to the Board of Directors of Isilon to acquire either 100% of the equity and other voting securities of Isilon or a minority of the equity or other voting securities of Isilon in connection with the entry into a commercial relationship between you and Isilon, or (ii) shall not restrict you in any way from commencing a tender or exchange offer to acquire 100% of the equity and other voting securities of Isilon or pursuing any other course of action, whether or not enumerated in this paragraph (9), in connection with, and during the pendency of, such a tender offer or exchange offer in the event that: (x) at any time after the date hereof Isilon enters into a definitive agreement with a third party or group with respect to (1) a merger, consolidation, recapitalization, liquidation or other similar transaction that would result in (A) such third party or group beneficially owning more than fifty percent (50%) of the outstanding equity interests or voting securities of Isilon, or (B) the stockholders of Isilon immediately prior to the consummation of such transaction holding (as a group) less than a majority of the voting securities of the Company;
surviving or resulting entity in such transaction (ivor its ultimate parent) acquireimmediately after the consummation of such transaction, or (2) a sale of all or substantially all of its assets, or (y) at any time after the date hereof there shall be pending a third party tender or exchange offer by any third party to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any a majority of the assets, tangible equity or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of Isilon and the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more Board of any voting securities or assets Directors of Isilon shall have failed to recommend that the Company, except for stockholders of Isilon reject such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result offer in the Company having to make a public announcement regarding Schedule 14D-9 related thereto (or any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(aamendment thereof).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Confidentiality Agreement (Emc Corp)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder The Investor agrees that, without from the prior approval date of this Agreement until the expiration of the BoardStandstill Period, such Shareholder neither it nor any of its Affiliates or Associates will, and it will notcause each of its Affiliates, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireAssociates and representatives not to, directly or indirectly, in any manner, acting alone or in concert with others:
(i) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Securities Exchange Act of 1934, by purchase as amended (the “Exchange Act”) or otherwise, two percent (2%) or more any notice of any direct nomination or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquireother business for consideration, or securities convertible into or exchangeable for, two percent (2%) or more of nominate any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant candidate for election to the Transaction Documents Board (as defined in the Investment Agreementincluding by way of Rule 14a-11 of Regulation 14A), including pursuant to Section 2.1 of other than as expressly permitted by this Agreement;
(ii) except as otherwise expressly provided in this Agreement, 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 “proxiesparticipant in a solicitation” to vote (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act), whether subject to) in opposition to the recommendation or proposal of the Board, or exempt from the federal proxy rulesrecommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence in any manner whatsoever any Person other person with respect to the voting of any the Common Stock 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 seek persons appointed as proxies by the Board; provided, however, that except as set forth in Section 3 and this Section 4, nothing herein shall be interpreted to propose restrict the Investor’s ability to influence, advise, change or control vote its shares on any proposal duly brought before the management, board of directors, policies, affairs or strategy of Company’s shareholders as the Company by way of any public communication or other communications to securityholders intended for such purposeInvestor determines in its sole discretion;
(iii) except as otherwise expressly provided in this Agreementseek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(iv) take any action (including making any proposal to act) by written consent;
(v) 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 of agreement or pooling arrangement, other than to the Company;
(iv) acquire, offer extent such a group may be deemed to acquire or agree to acquire, directly or indirectly, alone or in concert result with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or Associates as a result of this Agreement;
(iivi) direct vote for any nominee or indirect rightsnominees for election to the Board, warrants other than those nominated or supported by the Board;
(vii) except as specifically provided in Section 2 and Section 3 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) 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 assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or business from any of its Affiliatesperson;
(vix) arrangeother than at the direction of the Board seek, propose, or in make any way participatestatement with respect to, directly or indirectlysolicit, in negotiate with, or provide any financing for the purchase of two percent (2%) or more of information to any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Companyperson with respect to, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, restructuringpurchase, 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, liquidation dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders control of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(bx) Nothing solely with respect to an Opposition Matter, the Investor shall have the right to solicit in Section 2.3(a) will limit the Shareholder’s ability opposition, and otherwise campaign publicly or privately against, any Opposition Matter and shall be free to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act engage in his or her capacity as a member of the Board.communications with shareholders and third
Appears in 1 contract
Standstill. (a) Until Executive covenants and agrees that through the later period ending one day after the release of (x) earnings by Kxxxxx Corporation for the three (3)-year anniversary second quarter of the Closing and (y) the 2024, or August 9, 2024, whichever date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)is earlier, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will he shall not, directly or indirectly:
, whether as a principal, agent, officer, director, partner, employee, consultant, advisor, independent contractor or in any capacity whatsoever, alone or in association with any other person, carry on, or be engaged, concerned or take part in, any effort to acquire by purchase, tender offer, agreement or business combination any material assets or businesses of the Company Group or in any effort by Executive, or any “group” with which Executive in any way participants or is affiliated, to (i) engage in any “solicitation” or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934) of proxies or consents, in each case with respect to any securities of the Company, (ii) seek or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors or officers of the Company Group, (iii) publicly comment on any third party proposal regarding any governance changes, merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, 4859-8960-8592v.12 restructuring, disposition, spin-off, or other business combination involving the Company Group, or (iv) own, 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, whether by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuringor through the acquisition of control of another person or entity (including by way of merger or consolidation) any additional shares of the outstanding common stock of the Company, recapitalizationany rights to vote or direct the voting of any additional shares of the Company’s common stock (i.e., liquidation in excess of the number of shares held by Executive as of the Separation Date), or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies any securities convertible into common stock of the Company except for (x) additional shares acquired by way of stock splits, stock dividends, stock reclassifications or nominate any Person as other distributions or offerings made available and, if applicable, exercised on a director who is not nominated by the then incumbent directorspro rata basis, or propose any matter to be voted upon by the shareholders holders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board common stock of the Company seeking an amendment or waiver generally and (y) additional shares acquired upon the exercise of stock options granted by Kxxxxx Corporation in accordance with the terms and conditions of the provisions applicable equity compensation plan and stock option award agreement; provided that, subject to Executive’s compliance with all other material terms of this Agreement, including Sections 5A and 5D, nothing in this Section 2.35B shall restrict Executive (or any entity or group with which Executive is associated) from confidentially communicating to the Kxxxxx Corporation’s board of directors, which the Company may accept chief executive officer or reject chief financial officer any non-public proposals regarding potential transactions in its sole discretion, so long as any such request is made in a manner that does as would not reasonably be expected to require public disclosure thereof; or
(viii) take thereof under any action that might result in law applicable to the Company having to make a Group or its representatives. This covenant does not prohibit passive ownership of stock or debt of any public announcement regarding any corporation, including shares of common stock of Kxxxxx Corporation that are currently owned by Executive, as long as the matters referred to Executive is not otherwise in clauses (i) through (vii) violation of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)this covenant.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. In consideration of the Evaluation Material being furnished to you, you agree that, until the earlier of (a) Until a period of one year from the later of (x) the three (3)-year anniversary of the Closing date hereof and (yb) the date on which no nominee designated by that the Majority Approved Holders serves on Company executes a definitive written agreement with any third party to consummate a transaction that would result in such third party obtaining a majority of the Board and outstanding number of the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 Company's voting securities or all or substantially all of the Company's assets (or have irrevocably waived their rightthe "Standstill Period"), each Shareholder agrees thatneither you nor any of your affiliates (as currently defined in Rule 12b-2 under the Securities Exchange Act of 1934, without as amended (the prior approval "Exchange Act")) (nor anyone acting on behalf of the Boardany such persons), will (and neither you nor any of your affiliates (nor anyone acting on behalf of any of such Shareholder persons) will notassist, directly facilitate, provide or indirectly:
(i) acquirearrange financing to others, offer or propose to acquire, solicit an offer to sell or agree to acquireencourage others to), directly or indirectly, acting alone or in concert with others, by purchase without the prior written consent of the Company (acting through the Special Committee of the Board of Directors of the Company): (i) acquire, or otherwiseagree, two percent offer, seek or propose to acquire, ownership (2%) or more of any direct or indirect “including, but not limited to, beneficial ownership” (ownership as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more control of any voting securities of the Company, excluding or any Common Shares rights or options to acquire such securities, securities exchangeable for or convertible into any such securities, or any swaps or derivatives related thereto (collectively, "Securities") or any portion of the bank debt or other securities acquired pursuant to a conversion obligations of the Series A Preference SharesCompany; (ii) offer, bonus issuepropose, dividend make any public announcement with respect to, or distributions by offer to enter into, any merger, business combination, recapitalization, consolidation, or other similar extraordinary transaction involving the Company or otherwise acquired pursuant to the Transaction Documents any of its Securities, bank debt or other obligations; (as defined in the Investment Agreement)iii) initiate, including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreementseek, propose, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of “"proxies” to vote " (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 defined under Regulation 14A of the Exchange Act), whether subject to) to vote, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person person or entity with respect to the voting of of, any voting securities Securities; (iv) any action which would be reasonably expected to force the Company to make a public announcement regarding any of the Company or seek to propose to influence, advise, change or control the management, board types of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
matters set forth in clauses (i) through (iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
above; (v) arrangepublicly make or announce, or in otherwise publicly disclose an intent to propose, any way participatedemand, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); providedthis Agreement, that this clause shall not prohibit including requesting a Shareholder from making a confidential request waiver or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions modification of this Section 2.3, which the Company may accept provision of this paragraph or reject in its sole discretion, so long as (vi) enter into any such request is made in a manner that does not require public disclosure thereof; or
(viii) take discussions or arrangements with any action that might result in the Company having third party with respect to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Confidentiality Agreement (Ambience Merger Sub, Inc.)
Standstill. During the Restricted Period, Xxxx Xxx will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Until with respect to Company or the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Voting Securities, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 Securities and Exchange Commission (the “SEC”), including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”), whether subject to, ) of proxies or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person consents with respect to the voting election or removal of directors or any voting securities other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Company SEC) in any such solicitation of proxies or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
consents; (iii) except as otherwise expressly provided seek to advise, encourage or influence any Person, or assist any Person in this Agreementso encouraging, formadvising or influencing any Person, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the giving or withholding of any voting securities of proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Company;
Board’s recommendation in connection with such matter, if applicable); or (iv) acquireinitiate, offer to acquire encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) “vote no,” “withhold” or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessimilar campaign;
(vib) initiate, propose or otherwise act“solicit” (as such term is used in the proxy rules of the SEC, alone including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or in concert Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with others, respect to seek to propose to the Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of its shareholders “proxy access”; or (iii) conduct any amalgamation, merger, business combination, tender nonbinding referendum or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise hold a “stockholder forum”;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to controlnominate or propose the nomination of or recommend the nomination of, change any candidate to the Board; or influence (iii) seek, alone or in concert with others, or encourage any Person to seek, the management, board removal of directors or policies any member of the Company Board;
(i) call or nominate seek to call a special meeting of stockholders, or encourage any Person as to call a director who is not nominated special meeting of stockholders; (ii) act or seek to act by the then incumbent directors, written consent of stockholders; or propose (iii) make a request for any matter to be voted upon by the shareholders stockholder list or other records of the Company;
(viif) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(g) (i) make any request offer or proposal (with or without conditions) with respect to amendany tender offer, waive exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or terminate similar extraordinary transaction involving Company, any provision of Section 2.3(a)its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any Restricted Person; provided(ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) prior to such proposal becoming public, publicly comment on any proposal regarding any Extraordinary Transaction by a Third Party (it being understood that this clause shall (g) will not prohibit restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, assist or join, as a Shareholder party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that the foregoing will not prevent any Restricted Person from making a confidential request or proposal (i) bringing litigation to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or (v) responding to or complying with a validly issued legal process;
(i) take any action in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company 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 Company to become eligible for termination of registration pursuant to Section 2.312(g)(4) of the Exchange Act;
(j) sell, which offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(k) engage in any short sale or similar transaction with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of Company may accept (it being understood that the restrictions in this clause (k) will not apply to the sale of put options or reject in other option-related contracts);
(l) other than through non-public communications with Company that would not reasonably be expected to trigger public disclosure obligations for any Party, make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board, Company or its sole discretionmanagement, so long as policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or that would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require Company to make any public disclosure relating to any such request is intent, purpose, plan, proposal or condition;
(m) make or cause to be made any statement that disparages, calls into disrepute, slanders, impugns, casts in a negative light or otherwise damages the reputation of Company or any of its Affiliates, Associates, subsidiaries, successors or assigns, or any of its or their respective current or former officers, directors, employees, stockholders, agents, attorneys, advisors or representatives, or any of its or their respective businesses, products or services, in any manner that does would reasonably be expected to damage the business or reputation of the other or its businesses, products or services (including any statements regarding Company’s strategy, operations, performance, products or services), it being understood that this clause (m) will not require public disclosure thereofrestrict the ability of any Restricted Person to (i) comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such Restricted Person; or (ii) enforce such Restricted Person’s rights pursuant to this Agreement;
(n) compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities;
(o) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(p) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Xxxx Xxx Group in the aggregate owning, controlling or otherwise having any beneficial or other ownership interest of more than 9.9 percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that such member of the Xxxx Xxx Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities); or
(viiiq) take any action that might result in other than through open market broker sale transactions where the Company having to make a public announcement regarding any identity of the matters referred purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to in clauses (i) sell, through (vii) swap or hedging transactions or otherwise, the securities of Section 2.3(a)Company to any Third Party that, or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a knowledge of any member of the BoardXxxx Xxx Group (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause (q) will not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of activism or known plans to engage in activism).
Appears in 1 contract
Samples: Director Agreement (Alta Fox Opportunities Fund, LP)
Standstill. (a) Until During the later of (x) the three (3)-year anniversary Standstill Period, any Holder that together with its Affiliates owns 25% or more of the Closing issued and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval outstanding shares of the Board, such Shareholder will Common Stock shall not, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, i. directly or indirectly, alone purchase or in concert with othersotherwise acquire, or propose or offer to purchase or otherwise acquire, any Equity Securities whether by purchase tender offer, market purchase, privately negotiated purchase, Business Combination or otherwise, two percent (2%) if, immediately after such purchase or more acquisition, the Holder Interest of any direct such Holder would equal or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under exceed the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this AgreementInitial Percentage;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, . directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to indirectly propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its AffiliatesPerson a Business Combination;
(v) arrangeiii. make, 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 promulgated by the Commission under Section 14(a) of two percent (2%the Exchange Act) or more seek to advise, encourage or influence any person or entity with respect to the voting of any voting securities shares of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets capital stock of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise actinitiate, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies solicit stockholders of the Company for the approval of one or nominate more stockholder proposals or induce or attempt to induce any other Person as to initiate any stockholder proposal; or
iv. deposit any Equity Securities into a director who is not nominated by voting trust or subject any Equity Securities to any arrangement or agreement with respect to the then incumbent directorsvoting of such securities or form, join or propose in any matter to be voted upon by way participate in a "group" (within the shareholders meaning of Section 13(d)(3) of the Company;
(viiExchange Act) make with respect to any request or proposal Equity Securities, other than as expressly set forth in Section 7 hereof. Nothing in this Section 8 shall limit the ability of PGGM Directors to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman function in their capacities as members of the Board of the Company seeking an amendment or waiver of the Board. The provisions of this Section 2.3, which 8 may be waived by the Company may accept or reject in its sole discretion, so long as any such request is made in only upon the approval of a manner that does not require public disclosure thereof; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member majority of the Board, excluding all PGGM Directors and shall not be applicable to actions approved by the majority of the Board, excluding all PGGM Directors in circumstances in which the PGGM Directors are "interested directors" under Section 78.140 of the Nevada General Corporation Law.
Appears in 1 contract
Samples: Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc)
Standstill. (a) Until Betta hereby covenants to EyePoint that for a period beginning on the later of (x) the three (3)-year anniversary of the Closing Effective Date and (y) terminating on the date on which no nominee designated by that is [***] years following the Majority Approved Holders serves on first commercial sale of a Licensed Product in the United States, unless the Board and of Directors of EyePoint (the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)“Board”) shall overwise provide advanced written consent, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will Betta shall not, and shall cause its and its Affiliates’ respective employees, officers, directors, representatives, consultants, contractors, advisors and agents (collectively, “Representatives”) not to (and Betta and its Representatives shall not assist or encourage others to) directly or indirectly:
(ia) acquire, acquire or offer or propose to acquire, solicit an offer to sell seek, propose or agree agreed to acquire, directly or indirectlyby means of a purchase, alone agreement, business combination or in concert with othersany other manner, by purchase or otherwise, two percent (2%) or more beneficial ownership of any direct securities or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) assets of Common SharesEyePoint, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants including rights or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreementacquire such ownership;
(iib) except as otherwise expressly provided in this Agreement, make, seek or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board the Board, governing instruments or policies or affairs of directorsEyePoint, policiesincluding, affairs or strategy without limitation, by means of a solicitation of proxies (as such terms are defined in Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Company by way Securities Exchange Act of 1934, as amended (the “Exchange Act”), disregarding clause (iv) of Rule 14a-1(1)(2) and including any exempt solicitation pursuant to Rule 14a-2(b)(1) or (2)), or seeking to influence, advise or direct the vote of any public communication holder or other communications to securityholders intended for such purposevoting securities of EyePoint;
(iiic) except as otherwise expressly provided in this Agreement, form, join join, communicate or in associate with other security holders with respect to, or otherwise participate 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 EyePoint or any of its subsidiaries or any voting securities of the Company;
(iv) 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 or intangible, of the Company EyePoint or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliatessubsidiaries;
(vd) arrangeenter into any discussions, negotiations, arrangements or in understandings with any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert Third Parties with others, to seek to propose respect to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofforegoing; or
(viiie) take disclose any action that might result in the Company having intention, plan or arrangement to make a public announcement regarding do any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Exclusive License Agreement (EyePoint Pharmaceuticals, Inc.)
Standstill. (a) Until In consideration for being furnished with Evaluation Material by the later other Party, each Party (each such Party in such context, the “Standstill Party”) agrees that until the date that is the earlier of (xa) 18 months after the three (3)-year anniversary date of the Closing this Agreement and (yb) the date on which no nominee designated that a definitive agreement providing for a Transaction is executed by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees thatParties, without the prior approval consent of the Boardother Party, such Shareholder the Standstill Party shall not, and shall cause any person controlled by it not to (and the Standstill Party and any person controlled by it will notnot knowingly assist or form a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Rule 13d-5 thereunder, act in concert or participate with or encourage other persons to), directly or indirectly:
, (iA) acquire, acquire or offer or propose to acquire, solicit an offer to sell or seek, propose or agree to acquire, directly by means of a purchase, tender or indirectlyexchange offer, alone business combination or in concert with othersany other manner, by purchase or otherwise, two percent beneficial ownership (2%within the meaning of Section 13(d) of the Exchange Act and Rule 13d-3 thereunder) or more constructive economic ownership, including through any security, contract right or derivative position the value of which to the “owner” increases with an increase in the value of any direct equity securities (or indirect “beneficial ownership” (as defined other securities derived from the value of any equity securities) of the other Party, without regard to any hedge that may have been entered into with respect to such position, but not including any interests or rights set forth in Rule 13d-3 and Rule 13d-5 16a-1(c)(1)-(5) or (7) under the Exchange Act) , of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rightsmaterial assets of the other Party, warrants including rights or options to acquireacquire such ownership, (B) seek or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, governing instruments or policies or affairs or strategy of the Company other Party, including by way means of a solicitation of proxies (as such terms are defined in Rule 14a-1 under the Exchange Act, disregarding Rule 14a-1(l)(2)(iv) thereunder), including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act), entering into any arrangements, understandings or agreements (whether written or oral) with any person (other than its own Representatives) in connection with any of the foregoing or seeking to influence, advise or direct the vote of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “group” within the meaning holder of Section 13(d)(3) voting securities of the Exchange Act other Party or (C) make any public disclosure, or take any action that would reasonably be expected to require the other Party to make any public disclosure, with respect to any voting securities of the Company;
(iv) 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 matters that are the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions subject of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a3(a).
(b) Nothing Each Party represents to the other Party that it and its affiliates (other than individuals in their individual accounts and in de minimis amounts) do not beneficially own (within the meaning of Section 13(d) of the Exchange Act and Rule 13d-3 thereunder) or have constructive beneficial ownership (within the meaning of this Section 3) of any securities or material assets of the other Party.
(c) Notwithstanding anything contained herein to the contrary, the Standstill Party is permitted to purchase any securities in the ordinary course of business consistent with past practice (including through any retirement, pension or other welfare funds maintained by it) that does not in any event result in an aggregate ownership by it of more than 3% of the outstanding amount of any class of equity securities of the other Party.
(d) Further, and notwithstanding anything contained herein to the contrary, the Standstill Party shall not be prohibited from making any private proposal to the board of directors of the other Party that would not require a public announcement by such other Party.
(e) Notwithstanding anything contained herein to the contrary, Section 3(a) shall become inapplicable in the event that (i) the board of directors of Xxxxx’s approves, or Xxxxx’s enters into or publicly announces a transaction with any person that would result in such person beneficially owning or constructively beneficially owning more than 20% of the voting securities of Xxxxx’s (a “Control Stake”) or (ii) any person or persons acting in concert shall have commenced or publicly announced its or their intention to commence a bona fide tender offer or exchange offer for a Control Stake. In the event that (A) Xxxxx’s enters into or publicly announces a transaction with any person that would result in such person beneficially owning or constructively beneficially owning a Control Stake, and such transaction is terminated prior to the acquisition of the Control Stake by such person, or (B) a bona fide tender offer or exchange offer for a Control Stake shall have commenced or been publicly announced, and such tender offer or exchange offer is subsequently terminated, then, in each of cases (A) and (B), the standstill restrictions set forth in Section 2.3(a3(a) will limit shall be reinstated effective upon the Shareholder’s ability to vote public announcement of the occurrence of case (A) or (B) above, subject to the other provisions of this Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 3 and without any extension of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Boardoriginal effective term.
Appears in 1 contract
Standstill. During the period commencing on the Effective Date and continuing until the fifth anniversary of the Effective Date, BMS shall not, and shall cause the Affiliates of BMS not to:
(a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) acquire, or offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone beneficial ownership of any equity securities of Gilead, or any rights or options to acquire such beneficial ownership, or otherwise act in concert with othersrespect to any such securities, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants rights or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of with any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this AgreementPerson;
(iib) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules Regulation 14A promulgated under the United States Securities Exchange Act of 1934, as amended (the SEC “Exchange Act”)), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 promulgated pursuant to Section 14 of under the Exchange Act)) or initiate, whether subject to, propose or exempt from otherwise solicit stockholders of Gilead for the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting approval of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposestockholder proposals;
(iiic) except as otherwise expressly provided in this Agreement, form, join join, participate in, or in any way participate in encourage the formation of, a “group” group (within the meaning of Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the CompanyGilead;
(ivd) acquiredeposit any securities of Gilead into a voting trust, or subject any securities of Gilead to any agreement or arrangement with respect to the voting of such securities;
(e) make any public announcement with respect to, or submit a proposal for, or offer to acquire (with or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (iwithout conditions) of any of the assets, tangible or intangible, of the Company extraordinary transaction involving Gilead or any of its Affiliates securities or assets;
(f) seek, or encourage or support any effort, to influence or control the management, Board of Directors, business, or policies of Gilead (it being understood and agreed that this Section 15.12(f) shall not apply to the exercise by BMS of any of its rights and obligations under this Agreement, the Operating Agreement and the Ancillary Agreements as applicable);
(g) encourage or assist any other Person to undertake any of the foregoing actions; or [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(h) take any action that could reasonably be expected to require Gilead to make a public announcement regarding the possibility of any of the events described in clauses (a) through (g) of this Section 15.12; provided, however, that nothing in Sections 15.12(a), (e) or (g) shall be deemed to prohibit BMS from acquiring (i) by merger or stock purchase of more than fifty percent (50%) of the voting securities thereof, a Third Party that has beneficial ownership of equity securities of Gilead (or rights or options to acquire such beneficial ownership) or (ii) direct beneficial ownership of up to five percent (5%) of any class of equity securities of Gilead (or indirect rights, warrants rights or options to acquire any assets such beneficial ownership) by or through (1) an employee benefit plan of the Company BMS or any of its Affiliates, except (2) a diversified mutual or pension fund managed by an independent investment adviser or pension plan established for such assets as are then being offered for sale the benefit of the employees of BMS or its Affiliates, or (3) any stock portfolios not controlled by the Company BMS or any of its Affiliates;
(v) arrange, Affiliates that invest in Gilead or in any way participateof its Affiliates among other companies; provided that BMS or any of its Affiliates does not, directly or indirectly, in any financing for request the purchase trustee or administrator or investment adviser of two percent (2%) such fund, plan or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Companyportfolio to acquire Gilead equity securities; and provided, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); providedfurther, that this clause Section 15.12 shall be of no further effect and shall not prohibit a Shareholder bind BMS in any manner from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3and after such time, which the Company may accept or reject in its sole discretionif any, so long as any such request is made in a manner that does not require public disclosure thereof; or
(viii) take any action that might result in the Company having to Gilead shall make a public announcement regarding any that it has entered into a letter of the matters referred to in clauses (i) through (vii) intent or definitive agreement with a Third Party Acquirer providing for a Change of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any Control of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)Gilead.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. For a period of three years from the date hereof (a) Until the later of (x) the three (3)-year anniversary “Standstill Period”), no member of the Closing and Purchaser Group or any of their respective Affiliates (yas defined below) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees thatshall, without the prior approval written consent of a majority of the independent members of the Board of Directors of the Company (the “Board”) who are not affiliated with the Purchaser Group:
(a) in any manner acquire, such Shareholder will notagree or seek to acquire, or make any proposal or offer (other than to a member of the Board or senior management of the Company by means that would not cause public dissemination thereof) to acquire, whether directly or indirectly:,
(i) acquireany material assets of the Company or
(ii) any Common Stock, offer voting equity securities of the Company or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rightsexercisable for any such securities (including derivatives), warrants or options to acquireother than acquisitions that would not, or securities convertible into or exchangeable forin the aggregate, two percent result in the Purchaser Group together with their respective Affiliates Beneficially Owning (2%as defined herein) or more of any voting securities than 25.0% of the Company’s issued and outstanding Common Stock, excluding any Common Shares or other securities acquired pursuant to a conversion as of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 date of this Agreementsuch acquisition;
(iib) except as otherwise expressly provided in this Agreementpropose to any person (other than to a member of the Board or senior management of the Company by means that would not cause public dissemination thereof) or effect, makeseek to effect or enter into, or in any way participate in, directly or indirectly, whether alone or in concert with others, any merger, consolidation, acquisition, scheme, business combination or other extraordinary transaction in which the Company or any of its subsidiaries is a constituent corporation or party (a “solicitation” of “proxies” to vote Business Combination”);
(as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, c) solicit proxies or exempt from the federal proxy rules, seek to advise shareholder consents or influence participate in any manner whatsoever such solicitation for any Person with respect purpose relating to the voting election or removal of any voting securities directors of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposea Business Combination;
(iiid) except as otherwise expressly provided in this Agreement, form, join join, encourage, influence, advise 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 (the “Exchange Act”)) with respect to the voting, ownership or control of any voting securities Common Stock (other than the group consisting of the Companycurrent members of the Purchaser Group);
(ive) acquireseek to have the Company waive, offer to acquire amend or agree to acquiremodify its Certificate of Incorporation, directly Bylaws or indirectlythe Rights Agreement, alone dated as of July 17, 2001, between the Company and Mellon Investor Services LLC (the “Rights Agreement”);
(f) assist, advise or encourage (including by knowingly providing or arranging financing for that purpose) any other person in concert connection with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofforegoing; or
(viiig) make, or take any action (including a request to waive or amend any provision of this agreement) that might result in would cause the Company having to make make, a public announcement regarding any intention of the matters referred Purchaser Group or any of their respective Affiliates to in clauses (i) through (vii) of Section 2.3(a), or announce take an intention to do, or enter into any arrangement or understanding or discussions with others to do, action which would be prohibited by any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Standstill Agreement (Intermune Inc)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) From the date on which no nominee designated by of this Agreement until the Majority Approved Holders serves on Expiration Date or until such earlier time as the Board and restrictions in this paragraph 13 terminate as provided herein (such period, the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right“Restricted Period”), each Shareholder agrees that, without the prior approval of the Board, such Shareholder Investors will not, directly or indirectly:
and will cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (icollectively, the “Restricted Persons”) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquirenot to, directly or indirectly, alone absent prior express written invitation or authorization by the Board:
(a) engage in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownershipsolicitation” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible proxies or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant consents with respect to the Transaction Documents election or removal of directors or any other matter or proposal or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Investment Agreement), including pursuant to Section 2.1 Exchange Act) in any such solicitation of this Agreementproxies or consents;
(iib) except as otherwise expressly provided in this Agreementknowingly encourage, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence any other Person or knowingly assist any Person in any manner whatsoever so encouraging, advising or influencing any Person with respect to the voting giving or withholding of any voting securities of the Company or seek to propose to influenceproxy, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication consent or other communications authority to securityholders intended for vote or in conducting any type of referendum, binding or non-binding, (other than such purposeencouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iiic) except as otherwise expressly provided in this Agreement, form, join or act in concert with any way participate in partnership, limited partnership, syndicate or other group, including a “group” within the meaning of as defined pursuant to Section 13(d)(313(d) of the Exchange Act with respect to any voting securities Voting Securities, other than solely with other Affiliates of the CompanyInvestors with respect to Voting Securities now or hereafter owned by them;
(ivd) 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 of the assetsCompany, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants rights or options to acquire any assets Voting Securities of the Company or any if such acquisition would result in the Investors having beneficial ownership of its Affiliates, except for such assets as are then being offered for sale by more than 4.99% of the Company or any of its AffiliatesCompany’s outstanding common stock;
(ve) arrange, make or in any way participate, directly or indirectly, in any financing for the purchase tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of two percent (2%) a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by extraordinary transaction involving the Company or any of its Affiliates;
subsidiaries or its or their securities or assets (vieach, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict the Investors from tendering shares, receiving payment for shares or otherwise actparticipating 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); or 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 regarding any of its shareholders the types of matters set forth above in this paragraph;
(f) enter into a voting trust, arrangement or agreement or subject any amalgamationVoting Securities to any voting trust, mergerarrangement or agreement, business combinationin each case other than solely with other Affiliates of the Investors, tender with respect to Voting Securities now or exchange offer, restructuring, recapitalization, liquidation of or hereafter owned by them and other transaction to or with than granting proxies in solicitations approved by the Company or otherwise Board;
(g) (i) seek, 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 controlthe Board, except as set forth herein, (ii) seek, alone or in concert with others, the removal of any member of the Board; or (iii) conduct a referendum of stockholders;
(h) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(i) make any request for stock list materials or 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 books and records;
(j) except as set forth herein, make any public proposal with respect to (i) any change in the number or influence the management, board term of directors or policies the filling of any vacancies on the Board, (ii) any material change in the capitalization 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 Bylaws, or other actions which may impede the acquisition of control of the Company or nominate by any Person as person, (v) causing a director who is not nominated by class of securities of the then incumbent directorsCompany to be delisted from, or propose any matter to cease to be voted upon by the shareholders authorized to be quoted on, any securities exchange or (vi) causing a class of equity securities of the CompanyCompany to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viik) 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 13; 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 proceeding initiated by, or on behalf of, the Company against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or the topics covered in the correspondence between the Company and the Restricted Persons prior to the date hereof, or (D) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process;
(l) 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 13; or
(m) make any request or proposal submit any proposal, directly or indirectly, to amendamend or waive the terms of this Agreement, waive in each case which would reasonably be expected to result in a public announcement of such request or terminate any provision of Section 2.3(a)proposal; provided, that (A) the restrictions in this clause paragraph 13 shall terminate automatically upon the earliest of (i) as a non-exclusive remedy for any material breach of this Agreement by the Company (including, without limitation, a failure to appoint the Investor Designee or New Directors and otherwise constitute the Board in accordance with paragraph 1, a failure to form the Financial Policy Committee in accordance with paragraph 2, a failure to appoint a replacement in accordance with paragraph 6, or a failure to issue the Company Press Release in accordance with paragraph 12) , upon five (5) business days’ prior written notice by the Investors following any such material breach of this Agreement by the Company if such breach has not prohibit been cured within such notice period, provided that the Investors are not in material breach of this Agreement at the time such notice is given, (ii) such time as the Company files its definitive proxy statement with the SEC for the 2017 Annual Meeting or 2018 Annual Meeting that does not comply with the terms of this Agreement, (iii) the announcement by the Company of a Shareholder definitive agreement with respect to any Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities or all or substantially all of the Company’s assets, (iv) the commencement of any tender or exchange offer (by a person other than the Investors or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer or (v) the adoption by the Board of any amendment to the Charter or Bylaws of the Company that would reasonably be expected to impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future Company Annual Meeting of Stockholders, and (B) nothing contained in this paragraph 13 shall prevent the Investors from making (i) any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a confidential request or proposal Third Party, and nothing in this Agreement shall prevent the Company from responding to such statements, subject to the Chief Executive Officer obligations of the parties under paragraph 14 or Chairman (ii) any factual statement as required by applicable legal process, subpoena, or legal requirement or as part of a response to a request for information from any governmental authority with jurisdiction over the party from whom information is sought (so long as such request did not arise as a result of discretionary acts by the Investors or any of their Affiliates). Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 13 shall prohibit or restrict the Investor Designee or either of the New Directors from exercising his or her rights and fiduciary duties as a director of the Company or restrict his or her discussions solely among other members of the Board and/or management, advisors, representatives or agents of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)Company.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Director Appointment Agreement (Cognizant Technology Solutions Corp)
Standstill. (a) Until Each Investor Party agrees that, until the later of (x) date that is the three (3)-year 3) year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Date, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will it shall not, and it shall cause each of its Affiliates and Associates not to directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectlyin any manner, alone or in concert with others, by purchase or otherwisetake any of the following actions without the prior consent of the Company (acting through a resolution of a majority of the Company’s directors not including, two percent (2%) or more in respect of any consent to actions taken or proposed to be taken by any Investor Party or its Affiliates, any Investor Director):
(a) acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, whether by private or open market purchase, a block trade, a tender or exchange offer, Beneficial Ownership of, or any economic interest in, any right to direct the voting or disposition of, or any other right with respect to any debt or equity securities or direct or indirect rights to acquire any debt or equity securities of the Company, any securities convertible into or exchangeable for any such debt or equity securities, 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 the Common Shares (solely to the extent that, after giving effect to such acquisition, such Investor Party, its Affiliates and Associates would Beneficially Own, in the aggregate, greater than 1% of the then outstanding Common Shares (excluding any shares of Series A Preferred Shares or Common Shares issued or issuable in connection with the conversion of the Series A Preferred Shares)) or 5% of any tranche of any debt securities;
(b) (i) make or in any way encourage or participate, directly or indirectly, in any “beneficial ownershipsolicitation” of “proxies” or consents (whether or not relating to the election or removal of directors), as defined such terms are used in the rules of the SEC (but without regard to the exclusion set forth in Rule 13d-3 and Rule 13d-5 under 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 Exchange Act) Company or any of Common Shares, its Subsidiaries or any securities convertible or exchangeable into Common Shares or direct exercisable for any such securities, (ii) request, call or indirect rightsseek to call (or, warrants for the avoidance of doubt, publicly support another Person’s request or options to acquire, or securities convertible into or exchangeable call for, two percent (2%) or more of any voting securities a meeting of the Company’s shareholders or action by written consent (or the setting of a record date therefor), excluding (iii) initiate or be the proponent of any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions shareholder proposal for action by the Company or otherwise acquired pursuant to the Transaction Documents Company’s shareholders, (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(iiiv) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectlyseek, 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, (v) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any director from the Board, or (vi) become a “participant” in any contested “solicitation” of “proxies” to vote (as such terms are defined or used in the proxy rules of the SEC promulgated pursuant to Section 14 of under the Exchange Act), whether subject to, or exempt from ) for the federal proxy rules, seek to advise or influence in any manner whatsoever any Person election of directors with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(ivc) acquiremake any public announcement with respect to, offer to acquire or agree to acquireoffer, directly seek, propose or indirectlyindicate an interest in (in each case with or without conditions), either alone or in concert with others, by purchaseany merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or otherwise, (i) any purchase of a material portion of the assets, tangible properties or intangiblesecurities of the Company or any Subsidiary of the Company, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of its Affiliates their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (iiwhether written or oral) direct or indirect rights, warrants or options to acquire with any assets other Person regarding any of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliatesforegoing;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vid) otherwise act, alone or in concert with others, to seek to propose to control or influence, in any manner, the management, board of directors, business or policies, of the Company or any of its shareholders Subsidiaries, including, without limitation, (i) controlling or changing the Board or management of the Company, including any amalgamationplans or proposals to declassify the Board or to change the number or term of directors or to fill any vacancies on the Board, merger(ii) any material change in the capitalization, business combinationcapital allocation policy or dividend policy of the Company, tender or exchange offer(iii) seeking to have the Company waive or make amendments or modifications to the Company Charter Documents, restructuring, recapitalization, liquidation of 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 the events described in this Section 5.04;
(h) enter into any agreements, arrangements or understandings with any Third Party (including, without limitation, 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 any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any Third Party in connection with any of the foregoing;
(i) request the Company or otherwise seekany of its Representatives, alone directly or in concert with othersindirectly, to control, change amend or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of this Section 2.3(a)5.04; provided, provided that this clause shall not prohibit a Shareholder any Investor Party from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.35.04, 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; orthereof by any Person;
(viiij) take make any action public disclosure, announcement or statement with an intent to specifically disparage current or former Board members (in their capacity as such) or the Company’s management (in their capacity as such) or strategy, operations, financial results or any transactions involving the Company or any of its Subsidiaries, except for such statements made with the Company’s prior written consent, or that might result are supportive of the Company’s management and Board or that are otherwise consistent with the provisions of this Agreement; provided, however, that the foregoing provisions shall not be violated by (A) any general statement about market, industry or economic circumstances, conditions or trends, (B) any statement required to be made by applicable Law, (C) any statement protected by the whistleblower-protection provisions of any applicable Law, (D) any statement that is made in response to legal process or in the Company having context of any Action by or before any Governmental Authority or arbitrator (including any such Action to make a public announcement regarding any enforce the terms of the matters referred to this Agreement or other such Action in clauses (i) through (vii) of Section 2.3(aconnection with the transactions contemplated hereby), or announce an intention to do(E) any statement that is reasonably necessary in connection with the enforcement of rights under this Agreement, or enter into any arrangement or understanding or discussions with others to do, any of other written agreement involving the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).Company and such Investor Party;
(bk) Nothing contest the validity of this Section 5.04 or make, initiate, take or participate in any demand, Action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 2.3(a5.04; provided, however, that nothing in this Section 5.04 will (1) will limit the Shareholderany Investor Party’s ability to vote (subject to Section 1.2 above)vote, Transfer (subject to this Agreement, including Section 2.4 below5.05), convert shares of Series A Preferred Shares into Common Shares (subject to the Certificate of Designations), 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 announced basis, so long as, in each case, such submission is not intended to, and would not reasonably be expected to, require public disclosure by any Person), participate in rights offerings made by the Company to all holders of its Common Shares, receive any dividends or similar distributions with respect to any securities of the Company held by such Investor Party, tender Common Shares or Series A Preferred Shares into any tender or exchange offer (subject to Section 7 5.05), effect an adjustment to the Conversion Rate pursuant to the Certificate of the Series A Certificate) Designations or otherwise exercise rights of under its Common Shares or Series A Preference Preferred Shares or that are not the subject of this Section 5.04, and (2) limit the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 Investor Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Investment Agreement (James River Group Holdings, Ltd.)
Standstill. (a) Until During the later Standstill Period, the Investor, or any of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)its Affiliates, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, shall not directly or indirectly, alone except as expressly invited in writing by the Company:
i. subject to Section 5.16, without the express consent of the Company, acquire any additional equity securities (including Ordinary Shares, American Depositary Shares and Ordinary Share Equivalents) of the Company or in concert with othersany instrument that gives the Investor or any of its Affiliates the economic equivalent of ownership of an amount of securities of the Company (a “Derivative”) if, by purchase or otherwiseafter such acquisition, two the Investor would beneficially own more than twenty one percent (221.0%) of the Company’s outstanding share capital;
ii. knowingly encourage or more support a tender, exchange or other offer or proposal by a Third Party, provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company recommending that stockholders accept any direct such offer filed after such offer has commenced, the Investor shall not be prohibited from taking any of the actions otherwise prohibited by this clause (ii) for so long as the Company maintains and does not withdraw such recommendation;
iii. propose (x) any merger, consolidation, business combination, tender or indirect “beneficial ownership” exchange offer, purchase of the Company’s assets or businesses, or similar transaction involving the Company or (y) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company;
iv. seek to have called any meeting of the shareholders of the Company, propose or nominate for election to the Company’s board of directors any person whose nomination has not been approved by a majority of the Company’s board of directors (excluding the Designated Director, if any) or cause to be voted in favor of such person for election to the Company’s board of directors any Ordinary Shares or American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents (including any Derivatives) other than as contemplated by Section 5.3 hereof;
v. solicit proxies or consents or become a participant in a solicitation (as such terms are defined in Rule 13d-3 and Rule 13d-5 Regulation 14A under the Exchange Act) in opposition to the recommendation of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities a majority of the Company, excluding ’s board of directors with respect to any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, makematter, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence any Third Party, with respect to voting of any Ordinary Shares or American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents (including any Derivatives);
vi. deposit any Ordinary Shares or American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents in a voting trust or subject any manner whatsoever Ordinary Shares or American Depositary Shares of the then outstanding share capital of the Company or Ordinary Share Equivalents to any Person arrangement or agreement with respect to the voting of any voting securities such Ordinary Shares or American Depositary Shares of the then outstanding share capital of the Company or seek Ordinary Share Equivalents other than as contemplated by Section 5.3 hereof; or
vii. act in concert with any Third Party to propose to influencetake any action in clauses (i) through (vi) above, advise, change or control the management, board of directors, policies, affairs form or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” with any Third Party within the meaning of Section 13(d)(3) of the Exchange Act with respect to the equity securities (including any voting securities Derivatives) of the Company;
(iv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise. Notwithstanding the foregoing, (iA) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or mere voting in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more accordance with Section 5.3 hereof of any voting securities of the Company held by the Investor or any securities convertible into or exchangeable or exercisable for two percent (2%) or more its Affiliates shall not constitute a violation of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a)above, (B) nothing in this Agreement shall prohibit the Investor or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of its Affiliates from submitting to the actions restricted or prohibited under clauses (i) through (vii) board of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 directors of the Series A Certificate) Company or otherwise exercise rights to management of the Company a confidential proposal for a transaction involving a Change of Control or other proposed action, provided that neither the Company nor the Investor or any of its Common Shares Affiliates is required to publicly disclose the fact that such proposal or Series A Preference Shares request to consider such a proposal was made, (C) if any executive officer or the ability director of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity Investor serves as a member of the BoardCompany’s board of directors, any action he or she takes in the performance of his or her duties as a member of the Company’s board of directors shall not be deemed to violate this Section 5.1, and (D) the provisions of this Section 5.1 shall terminate and be of no further force or effect if (i) the Company publicly announces the entry into a definitive agreement for the acquisition of the Company or more than fifty percent (50%) of its consolidated assets by a third party, or (ii) any person commences a tender or exchange offer with respect to the securities representing fifty percent (50%) or more of the voting power of the Company, unless the Company files a recommendation statement under Rule 14d-9 of the Exchange Act (or such successor provision) with the SEC within 10 business days following commencement of such offer advising the Company’s stockholders to reject such offer (provided that if any transaction referred to in the foregoing clauses (i) and (ii) is terminated or abandoned, then the provisions of this Section 5.1 shall again become effective). In the event that the Company engages in discussions or negotiations involving a possible Change of Control of the Company, the Investor will be given notice thereof and the right to participate in any process on substantially the same terms as other participants.
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Novartis agrees that, without for a period commencing on the prior approval Effective Date and ending [***] after the Effective Date, unless specifically invited in writing to do so by Incyte, Novartis and each of its Affiliates (as that term is defined in Rule 12b-2 under the Board, such Shareholder Securities Exchange Act of 1934 (the “Exchange Act”) will notnot in any manner, directly or indirectly:
(ia) acquireeffect, or seek, 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 effect (whether publicly or otherwise, two percent (2%) or more cause or participate in, (i) any acquisition of (A) any Voting Stock of Incyte, (B) direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants rights or options to acquireacquire any Voting Stock of Incyte, or securities convertible into (C) assets or exchangeable for, two percent (2%) or more of any voting securities of the CompanyIncyte or any of its subsidiaries, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreementany merger, makeconsolidation, tender or exchange offer, or in other business combination involving Incyte or any way participate inAffiliate thereof, directly (iii) any restructuring, recapitalization, liquidation, dissolution or indirectlysimilar transaction with respect to Incyte or any Affiliate thereof, alone or in concert with others, (iv) any “solicitation” of “proxies” to vote (as such terms are defined or used in Regulation 14A under the proxy rules Exchange Act) or consents with respect to any Voting Stock of the SEC promulgated pursuant to Section 14 Incyte, any “election contest” (as such term is defined or used in Rule 14a-11 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person ) with respect to the voting Incyte, or any demand for a copy of any voting securities Incyte’s stock ledger, list of the Company or seek to propose to influenceits stockholders, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposebooks and records;
(iiib) except as otherwise expressly provided in this Agreement, form, join or in any way join, participate in a or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act Act) (“13D Group”) with respect to any voting securities Voting Stock of the CompanyIncyte;
(ivc) acquire, offer to acquire or agree to acquire, directly or indirectlyotherwise act (other than as contemplated under this Agreement), alone or in concert with othersothers (including by providing financing for another party), by purchaseto seek or offer to control or influence, exchange in any manner, the management, Board of Directors or otherwise, policies of Incyte;
(id) take any action that might force Incyte to make a public announcement regarding any of the assets, tangible or intangible, types of the Company or any of its Affiliates or (iimatters set forth in Section 11.6(a) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliatesabove;
(ve) arrangemake (publicly or to Incyte, or in any way participateits directors, officers, employees, agents or security holders, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a)this Agreement or any inquiry or statement relating thereto; providedor
(f) instigate, that this clause shall not prohibit a Shareholder from making a confidential request encourage or proposal assist any Third Party to the Chief Executive Officer or Chairman do any of the Board foregoing; provided that Novartis and its Affiliates may acquire, hold or sell, through their respective treasury departments, an aggregate amount not to exceed [***] of the Company seeking an amendment or waiver voting power represented by Incyte’s Voting Stock solely for the purposes of investment in the provisions ordinary course of this Section 2.3, which the Company may accept or reject in its sole discretion, business (so long as any decision to make such request acquisition or sale is made in compliance with United States securities law), [***] and provided further that the restrictions set forth in this Section 11.6 shall terminate immediately if: (i) a manner Person or 13D Group not including Novartis or its Affiliates [***], either (x) Incyte publicly announces its willingness to consider such proposal or alternative proposals for a transaction described in clause (ii)(A) or (B) below, or (y) the Board of Directors of Incyte determines to engage in negotiations with such Person or 13D Group or any other party other than Novartis or its Affiliates with respect to a transaction described in clause (ii)(A) or (B) below [***], (ii) Incyte or its Affiliates enters in to a letter of intent or definitive agreement with any party other than Novartis or its Affiliates (A) [***]; or (B) which would result in all or substantially all of Incyte’s assets being sold to any Person or 13D Group not including Novartis or its Affiliates; (iii) Incyte announces its determination to pursue (w) a transaction described in clause (ii)(A) or (B) above, (x) [***] that does represents more than [***] of the voting power of the outstanding Voting Stock of Incyte, (y) the sale, transfer or disposition of all or substantially all of Incyte’s assets or [***] with any party other than Novartis or its Affiliates; [***]; or (vi) the sale, transfer or disposition to [***]; provided, however, that any termination pursuant to clause (i)(B) above shall not require public disclosure thereof; or
(viii) permit Novartis or its Affiliates to take any action described in Section 11.6(a)(iv), Section 11.6(b) or Section 11.6(f). In the event that might result in the Company having to make a public announcement regarding any of the matters referred to in transactions contemplated by clauses (i) through (vii) of Section 2.3(a), (ii) and/or (iii) shall have been terminated or announce an intention to doabandoned, and such termination or enter into any arrangement or understanding or discussions with others to doabandonment is demonstrable by a press release issued by Incyte (or, any in the case of clause [***]), then this Section 11.6 shall again be applicable for the remainder of the actions restricted period specified herein. Further, nothing in this Section 11.6 shall obligate Novartis or prohibited under clauses its Affiliates to cause Novartis’ or its Affiliates’ advisors (iincluding financial advisors, attorneys, accountants and consultants) through (vii) to comply with the terms of this Section 2.3(a)11.6 when acting on their own behalf or on behalf of Third Parties.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary Each of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Xxxxxxx Parties agrees that, without during the prior approval Covered Period (as defined below) (unless specifically requested in writing by the Company, acting through a resolution of a majority of the BoardCompany’s directors, such Shareholder will or as permitted by this Agreement), it shall not, directly and shall cause each of its Affiliates or indirectlyAssociates (as such terms are defined in Rule 12b-2 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), not to:
(i) acquiresubmit any stockholder 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, offer or propose nominate any candidate for election to acquire, solicit an offer to sell or agree to acquirethe Board;
(ii) engage in, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownershipsolicitation” (as defined in Rule 13d-3 and Rule 13d-5 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquirethe Board, or securities convertible into recommend or exchangeable for, two percent (2%) request or more of any voting securities of the Company, excluding any Common Shares induce or other securities acquired pursuant attempt to a conversion of the Series A Preference Shares, bonus issue, dividend induce or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise advise, encourage or influence in any manner whatsoever any Person other person with respect to the voting of any voting securities stock of the Company (including any withholding from voting) or seek disclose how he intends to propose to influencevote or act on any such matter; provided, advisehowever, change or control the management, board of directors, policies, affairs or strategy that any of the Company Xxxxxxx Parties may publicly disclose how he/it intends to vote in any proxy solicitation or referendum if and to the extent required by way of any public communication or applicable subpoena, legal process, other communications to securityholders intended legal requirement (except for such purposerequirement that arises as a result of the actions of a Xxxxxxx Party otherwise in violation of this Section 2);
(iii) except seek to call, or to request the call of, a special meeting of the Company’s stockholders; provided, however, that the Xxxxxxx Parties shall be free to vote as otherwise expressly provided in this Agreement, they see fit on any public solicitation with respect to such matters;
(iv) 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 of the Company;
(iv) 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 or intangible, stock of the Company or deposit any shares of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets voting stock of the Company in a voting trust or similar arrangement or subject any shares of voting stock of the Company to any voting agreement or pooling arrangement in order to effect or take any of its Affiliates, except for such assets as are then being offered for sale the actions expressly prohibited by this Section 2 or otherwise take any action challenging the Company validity or enforceability of any provisions of its Affiliatesthis Section 2;
(v) arrangeexcept as expressly provided in this Agreement, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%A) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, 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 controlthe Board or (B) seek, alone or in concert with others, the removal of any member of the Board or a change in the size or influence composition of the managementBoard or the committees thereof;
(vi) except as expressly provided in this Agreement, board of directors alone or in concert with others, make any proposal or request that constitutes: (A) advising, controlling, changing or influencing (or in each case attempting to do so) the Board or management or policies of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization or dividend policy of the Company or nominate (C) any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of other material change in the Company’s executive management, business, corporate strategy or corporate structure;
(vii) make (A) 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 or (B) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of shares of the Company’s common stock (the “Common Stock”) or rights or options to acquire Common Stock or engage in any swap or hedging transactions (other than cash-only settled swaps) or other derivative agreements of any nature with respect to the Common Stock, if such acquisition or transaction would result in the Xxxxxxx Parties having beneficial ownership or economic exposure to more than 5.0% of the then issued and outstanding Common Stock (excluding, for the avoidance of doubt, any economic exposure resulting from cash-only settled swaps);
(viii) 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 request or advance any proposal to amend, modify or waive or terminate any provision the terms of Section 2.3(a); this Agreement (provided, that this clause shall not prohibit a Shareholder from making a the Xxxxxxx Parties may make confidential request or proposal requests to the Chief Executive Officer Board to amend, modify or Chairman waive the terms of this Agreement);
(ix) disclose publicly, or privately in a manner that could reasonably be expected to become public, how any Xxxxxxx Party intends to vote or act, or has voted or acted, at any stockholder meeting or in connection with any stockholder action by written consent;
(x) institute, solicit, assist, facilitate 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), make any requests for a list of the Board Company’s stockholders or any “books and records” demands against the Company or make application or demand to a court or other person for an inspection, investigation or examination of the Company seeking an amendment or waiver its subsidiaries or Affiliates (whether pursuant to Section 220 of the Delaware General Corporation Law or otherwise); provided that nothing shall prevent any of the Xxxxxxx Parties from bringing litigation to enforce the provisions of this Section 2.3, which Agreement or from bringing litigation that alleges fraud or malfeasance on the Company may accept part of the Board or reject in its sole discretion, so long challenging the Board's approval of an Extraordinary Transaction (as any such request is made in a manner that does not require public disclosure thereofdefined below); or
(viiixi) advise, assist, encourage, seek to persuade or solicit any person to take any action that might result in the Company having with respect to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing For the avoidance of doubt, nothing in Section 2.3(athis Agreement shall restrict any of the Xxxxxxx Parties during the Covered Period from participating (on the same basis as other stockholders of the Company) will limit in any third-party tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation or other extraordinary transaction involving the Shareholder’s ability to vote Company or any of its or their respective securities or assets (subject to Section 1.2 abovean “Extraordinary Transaction”), Transfer (subject or from making a public statement in opposition to Section 2.4 below)an Extraordinary Transaction in response to any proposed Extraordinary Transaction that has been publicly announced by the Company or any third party, convert (subject it being understood that such a public statement in opposition to an Extraordinary Transaction that only expresses such opposition and the specific factual reasons for such opposition to the particular Extraordinary Transaction will not, without more and in and of itself, be deemed to violate Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Boardhereof.
Appears in 1 contract
Samples: Cooperation and Settlement Agreement (Cypress Semiconductor Corp /De/)
Standstill. (a) Until Each Stockholder other than Travelers and DLJ severally covenants and agrees that, until the later of (x) the three (3)-year second anniversary of the Closing Date, it will not, and will cause its Affiliates not to, singly or as a part of a "partnership, limited partnership, syndicate or other group" (yas those terms are used within the meaning of Section 13(d)(3) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the BoardSecurities Exchange Act of 1934, such Shareholder will notas amended (the "Exchange Act")), directly or indirectly, through one or more intermediaries or otherwise:
(ia) acquirewithout the consent of the Board of Directors of the Buyer, offer voluntarily acquire or offer, seek, propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” ownership (as such term is defined in Rule 13d-3 and Rule 13d-5 regulations promulgated under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or an aggregate of more of any voting securities than 5% of the Company, excluding any outstanding shares of Buyer Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this AgreementStock;
(iib) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” (i) solicit proxies within the meaning of “proxies” to vote (as such terms are used in the proxy rules of the SEC Regulation 14A promulgated pursuant to Section 14 of under the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person Act with respect to the voting Buyer Common Stock, (ii) become a participant in a solicitation of any voting securities of the Company or seek proxies with respect to propose to influenceBuyer Common Stock, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “group” Group (as such term is used within the meaning of Section 13(d)(3) of the Exchange Act Act, which meaning shall apply for all purposes of this Agreement) which is soliciting or intends to solicit proxies with respect to Buyer Common Stock, or (iv) seek to advise, encourage or influence any person or entity with respect to the voting securities of the Companyany Buyer Common Stock;
(ivc) acquireform, 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, join or in any way participateparticipate in a Group which has acquired or plans to acquire shares of Buyer Common Stock, directly or indirectly, in any financing for the purchase other than as a Group composed of two percent such Stockholder and its Affiliates (2%) or more of any voting securities of the Company or any securities convertible provided that nothing herein shall prohibit a Stockholder from tendering into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatesa tender offer);
(vid) deposit any Buyer Common Stock in any voting trust or subject any Buyer Common Stock to a voting agreement or other arrangement with similar effect that could reasonably be expected to result in any of the foregoing;
(e) otherwise act, alone or in concert with othersothers (including by providing financing for another party), to seek or offer to propose control, in any manner, the management, Board of Directors or policies of Buyer;
(f) unless and until such Stockholder has received the prior written invitation or approval of a majority of the disinterested Board of Directors of Buyer, directly or indirectly, solicit, seek or offer to effect, negotiate with or provide any information to any party, or make any statement or proposal to any person with a view to forming a Group or make any public announcement or proposal or offer whatsoever, with respect to (i) any form of business combination or similar transaction involving the Company Buyer or any of its shareholders any amalgamationSubsidiary thereof, including, without limitation, a merger, business combination, tender or exchange offer, offer or liquidation of assets or (ii) any form of restructuring, recapitalization, liquidation of recapitalization or other similar transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal respect to the Chief Executive Officer Buyer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 Subsidiary thereof; or
(viiig) take investigate, encourage or assist any action that might result in the Company having third party to make a public announcement regarding do any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sunglass Hut International Inc)
Standstill. Executive agrees that during the Standstill Period (as hereinafter defined):
(a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder Executive will not, directly or indirectly:
and will cause his Affiliates (ias hereinafter defined) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquirenot to, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent acquire Beneficial Ownership (2%as hereinafter defined) or more of any direct shares of common stock or indirect common stock equivalents or the Corporation, in each case, now or hereafter outstanding (collectively, “beneficial ownershipSecurities”) without the consent of the Corporation, if the effect of such acquisition would be to increase the aggregate Beneficial Ownership of Securities of Executive to greater than 4.99% of the total number of shares of Company common stock then outstanding (the “Percentage Limitation”); provided, that the foregoing limitation shall not apply to Executive’s acquisition of common stock pursuant to the exercise of the stock options granted to him or the vesting of any stock options, SARs, or equity he currently holds. In addition, Executive will not, and will cause his Affiliates not to, make any public announcement with respect to, or submit any proposal for or with respect to (i) the acquisition of Beneficial Ownership of any Securities if the effect of such acquisition would be to cause the Beneficial Ownership of Executive and his Affiliates to exceed the Percentage Limitation. For purposes of this Section, the term “Affiliates” (as defined shall have the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and “Beneficial Ownership” shall be determined in accordance with Rule 13d-3 and Rule 13d-5 under the Exchange Act.
(b) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities Without the express prior written approval of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion Board of Directors of the Series A Preference Shares, bonus issue, dividend or distributions by Corporation (the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement“Board”), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this AgreementExecutive will not, make, or in any way participate inand will cause his Affiliates not to, directly or indirectly, alone solicit proxies or initiate, propose or become a “participant” in concert with others, any a “solicitation” of “proxies” to vote (as such terms are used defined in the proxy rules of the SEC promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act), whether subject to, in opposition to any matter that has been recommended by a majority of the members of the Board or exempt from in favor of any matter that has not been approved by the federal proxy rules, Board or seek to advise advise, encourage or influence any “person” (as such term is used in any manner whatsoever any Person Section 13(d) and 14(d) of the Exchange Act, “Person”) with respect to the voting of Securities in such manner, or initiate, or induce or attempt to induce any voting securities Person to initiate, any shareholder proposal relating to the Corporation.
(c) Without the express prior written approval of the Company or seek to propose to influenceBoard, adviseExecutive will not, change or control the managementand will cause his Affiliates not to, board of directorsjoin a consortium, policiespartnership, affairs or strategy of the Company by way of any public communication limited partnership, syndicate or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(aAct), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his concert with any Person, for the purpose of acquiring, holding, voting or her capacity as a member disposing of Securities, or for any other purpose which would require disclosure under Item 4 of Schedule 13D adopted by the BoardSecurities and Exchange Commission under the Exchange Act.
(d) The “Standstill Period” shall commence on the Date of Termination and shall terminate on December 31, 2018.
Appears in 1 contract
Samples: Employment Separation Agreement (Banc of California, Inc.)
Standstill. (a) Until Each Stockholder shall not, during the later period commencing on the Closing Date and continuing until the earlier of (x1) the three (3)-year anniversary of 120 days after the Closing Date and (y2) the date on which no nominee designated such Stockholder ceases to own any Holdco Common Stock (such period, the “Standstill Period”), unless such action has been specifically invited in writing by the Majority Approved Holders serves on the Holdco Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (it being understood that execution of this Agreement by Parent or have irrevocably waived their rightHoldco does not constitute such an invitation), each Shareholder agrees that, without the prior approval of the Board, and such Shareholder Stockholder will notdirect its Representatives not to, directly or indirectly:
(ia) acquireeffect or seek, offer or propose (whether publicly or otherwise and whether or not subject to acquireconditions) to effect or seek, solicit or announce any intention to effect or seek, or cause or otherwise participate in:
i. any acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any Holdco Common Stock;
ii. any tender or exchange offer, consolidation, acquisition, merger, joint venture, business combination or extraordinary transaction involving Holdco or any of its Subsidiaries or all or a material portion of the assets of Holdco or any of its Subsidiaries (except that any Stockholder or its Representatives may affect or pursue an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more acquisition of any direct assets offered for sale by Holdco or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) any of Common Sharesits Subsidiaries);
iii. any recapitalization, any securities convertible or exchangeable into Common Shares or direct or indirect rightsrestructuring, warrants or options to acquireliquidation, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares dissolution or other securities acquired pursuant extraordinary transaction with respect to a conversion Holdco or any of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;its Subsidiaries; or
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, iv. any “solicitation” of “proxies” to vote (as such terms are used defined in Regulation 14A promulgated by the proxy rules SEC) or consents to vote any voting securities of the SEC promulgated pursuant to Section 14 Holdco or any of the Exchange Act), whether subject toits Subsidiaries from any holder of any voting securities of Holdco or any of its Subsidiaries, or exempt from the federal proxy rulesotherwise advise, seek to advise assist or influence in any manner whatsoever encourage any Person with respect to the voting of any voting securities of the Company Holdco or seek to propose to influence, advise, change or control the management, board any of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeits Subsidiaries;
(iiib) except as otherwise expressly provided in this Agreement, form, join join, become a member of, or in any way participate in or engage in negotiations, arrangements, understandings or discussions regarding, a “group” (within the meaning of Section 13(d)(3Rule 13d-5(b)(l) of promulgated under the Exchange Act Act) with respect to any voting or other securities of the Company;
(iv) 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 or intangible, of the Company Holdco or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company Subsidiaries or any securities convertible into or exercisable or exchangeable or exercisable for two percent (2%) or more of any voting or other securities or assets of the Company, except for such assets as are then being offered for sale by the Company Holdco or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties Subsidiaries or otherwise act in his concert with any Holdco in respect of any such securities;
(c) call, request, or her capacity seek to have called any meeting of the stockholders of Holdco or execute any written consent in lieu of a meeting of holders of any securities of Holdco;
(d) advise, assist, or knowingly encourage, or direct any Person to advise, assist or knowingly encourage any other persons with respect to any of the conduct prohibited by this Section 3. Notwithstanding the foregoing, the parties agree and acknowledge that (i) each Stockholder may vote its shares of Holdco Common Stock at any meeting of holders of Holdco Common Stock in its sole discretion and (ii) any Stockholder may coordinate any such vote with, act in concert with, and be part of a “group” with, any other Holdco stockholder that is an Affiliate of such Stockholder (iii) each Stockholder may participate as a member seller in any tender or exchange offer commenced by a third party (for the avoidance of doubt, not in violation of this Agreement) or by Holdco and (iv) this Section 3 will only apply to (A) the BoardStockholders and (B) their permitted transferees pursuant to Section 2(b)(ii) of this Agreement in respect of Locked Up Securities owned by such permitted transferees.
Appears in 1 contract
Standstill. During the Restricted Period, none of the CCC Signatories will, and each will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Until with respect to Company or the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Voting Securities, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”), whether subject to, ) of proxies or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person consents with respect to the voting election or removal of directors or any voting securities other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Company SEC) in any such solicitation of proxies or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
consents; (iii) except as otherwise expressly provided seek to advise, encourage or influence any Person, or assist any Person in this Agreementso encouraging, formadvising or influencing any Person, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the giving or withholding of any voting securities of proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Company;
Board’s recommendation in connection with such matter, if applicable); or (iv) acquireinitiate, offer to acquire encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) “vote no,” “withhold” or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessimilar campaign;
(vib) initiate, propose or otherwise act“solicit” (as such term is used in the proxy rules of the SEC, alone including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) Company’s stockholders for the approval of any stockholder proposal, whether made pursuant to Rule 14a-4 or in concert Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such stockholder proposal;
(c) with others, respect to seek to propose to the Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of its shareholders “proxy access”; or (iii) conduct any amalgamation, merger, business combination, tender nonbinding referendum or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise hold a “stockholder forum”;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to controlnominate or propose the nomination of or recommend the nomination of, change any candidate to the Board; or influence (iii) seek, alone or in concert with others, or encourage any Person to seek, the management, board removal of directors or policies any member of the Company Board;
(e) (i) call or nominate seek to call a special meeting of stockholders, or encourage any Person as to call a director who is not nominated special meeting of stockholders; (ii) act or seek to act by the then incumbent directors, written consent of stockholders; or propose (iii) make a request for any matter to be voted upon by the shareholders stockholder list or other books and records of the Company;
(viif) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other 4883-0158-4932.2 - 6/10/2022 2:47:05 PM group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(g) (i) make any request offer or proposal (with or without conditions) with respect to amendany tender offer, waive exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or terminate similar extraordinary transaction involving Company, any provision of Section 2.3(a)its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any Restricted Person; provided(ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) prior to Company announcing an Extraordinary Transaction, publicly comment on any proposal regarding any Extraordinary Transaction (it being understood that this clause shall (g) will not prohibit restrict any Restricted Person from (A) publicly commenting on an Extraordinary Transaction involving any Third Party after Company has announced such Extraordinary Transaction; or (C) tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, assist or join, as a Shareholder party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that the foregoing will not prevent any Restricted Person from making a confidential request or proposal (i) bringing litigation to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or (v) responding to or complying with a validly issued legal process;
(i) take any action in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company 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 Company to become eligible for termination of registration pursuant to Section 2.312(g)(4) of the Exchange Act;
(j) sell, which offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities; 4883-0158-4932.2 - 6/10/2022 2:47:05 PM
(k) engage in any short sale or similar transaction with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of Company (it being understood that the restrictions in this clause (k) will not apply to the sale of put options or other option-related contracts);
(l) other than through non-public communications that would not reasonably be expected to trigger public disclosure obligations for any Party, make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board, Company or its management, policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or that would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(m) enter into any economic relationship with any Person in respect of Company, or compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities;
(n) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(o) without the prior consent of the Board, including a determination that there is no material non-public information regarding the Company, acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the CCC Group in the aggregate owning, controlling or otherwise having any beneficial or other ownership interest of more than 19.9 percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that a member of the CCC Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities, provided that options disclosed to the Company may accept or reject in its sole discretion, so long and outstanding as any of the date hereof shall be excluded from such request is made in a manner that does not require public disclosure thereofcalculation); or
(viiip) take any action that might result in other than through open market broker sale transactions where the Company having to make a public announcement regarding any identity of the matters referred purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to in clauses (i) sell, through (vii) swap or hedging transactions or otherwise, the securities of Section 2.3(a)Company to any Third Party that, or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a knowledge of any member of the BoardCCC Group (after due inquiry in 4883-0158-4932.2 - 6/10/2022 2:47:05 PM connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest of more than 4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause (q) will not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of activism or known plans to engage in activism).
Appears in 1 contract
Samples: Director Appointment Agreement (ARCA Biopharma, Inc.)
Standstill. Each Purchaser shall not (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their rightshall cause its Affiliates not to), each Shareholder agrees that, without the prior approval written consent of the Board, such Shareholder will not, directly or indirectlyCompany's Board of Directors:
(ia) acquire, announce an intention to 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, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the CompanyCompany as a result of which acquisition the Purchasers (and their Affiliates), excluding any Common Shares collectively, would beneficially own more than 32.5% of the outstanding capital stock of the Company on a fully diluted basis, other than acquisitions by way of share dividends or other securities acquired pursuant distributions pro rata to a conversion holders of voting securities;
(b) propose that the Purchasers or any Affiliates of the Series A Preference SharesPurchasers enter into, bonus issuedirectly or indirectly, dividend any merger or distributions by other business combination involving the Company or otherwise acquired pursuant propose to purchase, directly or indirectly, a material portion of the Transaction Documents (as defined in assets of the Investment Agreement), including pursuant to Section 2.1 Company or any of this Agreementits Subsidiaries;
(iic) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of “"proxies” to vote " (as such terms are used in the proxy rules of the SEC Regulation 14A promulgated pursuant to Section 14 of under the Exchange Act), whether subject to, ) to vote or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person consent with respect to the voting of any voting securities of the Company (whether or seek not such solicitation is subject to propose to influence, advise, change or control regulation under Regulation 14A promulgated under the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeExchange Act);
(iiid) except as otherwise expressly provided in this Agreement, form, join or in any way participate in or encourage the, formation of a “"group” " with any person (within the meaning of Section 13(d)(3) of the Exchange Act Act), other than with respect to the Purchaser's Affiliates, any other Purchaser and such other Purchaser's Affiliates;
(e) deposit any voting securities of the Company into a voting trust or subject any such voting securities to any arrangement or agreement with respect to the voting or disposition thereof (other than any that may be effected among the Purchasers and their Affiliates);
(f) initiate, propose or otherwise solicit stockholders of the Company for the approval of one or more stockholder proposals with respect to the Company as described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce any other person to initiate any such stockholder proposal with respect to the Company;
(ivg) acquireexcept in accordance with Section 3 of this Agreement, offer seek election to acquire or agree seek to acquire, directly place a representative on the Company's Board of Directors or indirectly, alone or in concert with others, by purchase, exchange or otherwise, seek the removal of any member of the Company's Board of Directors;
(i) solicit, seek to effect, negotiate with or provide non-public information to any other person with respect to, (ii) make any statement or proposal, whether written or oral, to the Company's Board of Directors or any director or officer of the assetsCompany with respect to, tangible or intangible(iii) otherwise make any public announcement or proposal whatsoever with respect to, any form of business combination transaction (with any person) involving a change of control of the Company or any the acquisition of its Affiliates a substantial portion of the equity securities or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its AffiliatesSubsidiaries, except for such assets as are then being offered for sale by including a merger, consolidation, tender offer, exchange offer or liquidation of the Company's assets, or any restructuring, recapitalization or similar transaction with respect to the Company or any of its AffiliatesSubsidiaries; PROVIDED, HOWEVER, that the foregoing shall not (A) apply to discussions between or among the Purchasers, their Affiliates or any of their employees, agents or representatives or (B) in the case of clause (ii) above, limit the ability of any designee of the Purchasers on the Company's Board of Directors to make any such statement or proposal or to discuss any such proposal with any officer or director of or advisor to the Company or advisor to the Company's Board of Directors unless, in either case, it would reasonably be expected to require the Company to make a public announcement regarding such discussion, statement or proposal;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vii) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change control or influence the management, board of directors management or policies of the Company or nominate any Person (except for (A) voting in its full discretion as a holder of voting securities in accordance with the terms of such voting securities and, if applicable, together with the other Purchasers and the Purchasers' Affiliates and (B) actions taken as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company);
(viij) make request, or take any request or proposal action to amendobtain, waive or terminate any provision list of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman holders of the Board voting securities of the Company seeking an amendment or waiver for the purpose of accomplishing any of the provisions of this Section 2.3actions in Sections 4(a)-(i) hereof;
(k) publicly disclose any intention, which plan or arrangement inconsistent with the foregoing, or make any such disclosure privately if it would reasonably be expected to require 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding such intention, plan or arrangement; or
(l) advise, assist (including by knowingly providing or arranging financing for that purpose) or knowingly encourage any other person in connection with any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. (a) Until The Investor hereby agrees that the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) Investor shall neither acquire, offer nor enter into discussions, negotiations, arrangements or propose understandings with any third party to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” ownership (as defined in Rule 13d-3 and Rule 13d-5 promulgated under the Securities Exchange ActAct of 1934, as amended) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents Voting Stock (as defined in the Investment Agreementbelow), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable for Voting Stock, or exercisable for two percent any other right to acquire Voting Stock (2%) except, in any case, by way of stock dividends or more other distributions or offerings made available to holders of any voting securities or assets Voting Stock generally) without the written consent of the Company, except for if the effect of such assets acquisition would be to increase the Voting Power (as are defined below) of all Voting Stock then being offered for sale beneficially owned (as defined above) by the Investor or which it has a right to acquire to more than nineteen and ninety-nine one hundredths percent (19.99%) (the "STANDSTILL PERCENTAGE") of the Total Voting Power (as defined below) of the Company or any of its Affiliates;at the time in effect; PROVIDED that:
(via) otherwise act, alone or in concert with others, to seek to propose The Investor may acquire Voting Stock without regard to the Company or any of its shareholders any amalgamationforegoing limitation, mergerand such limitation shall be suspended, business combinationbut not terminated, if and for as long as (i) a tender or exchange offer, restructuring, recapitalization, liquidation of offer is made and is not withdrawn or terminated by another person or group to purchase or exchange for cash or other transaction consideration any Voting Stock that, if accepted or if otherwise successful, would result in such person or group beneficially owning or having the right to or acquire shares of Voting Stock with aggregate Voting Power of more than nineteen and ninety-nine one hundredths percent (19.99%) of the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies Total Voting Power of the Company or nominate any Person as a director who then in effect and such offer is not nominated by withdrawn or terminated prior to the then incumbent directorsInvestor making an offer to acquire Voting Stock or acquiring Voting Stock; PROVIDED HOWEVER, that the foregoing standstill limitation will be reinstated once any such tender or exchange offer is withdrawn or terminated, (ii) another person or group hereafter acquires Voting Stock that results in such person or group being required to file a Schedule 13D (under the rules promulgated under Section 13(d) under the Securities and Exchange Act of 1934, as such rules and section are in effect on the date hereof), or propose any matter other similar or successor schedule or form, indicating that the purpose of such acquisition is other than for mere investment; PROVIDED, HOWEVER, that the foregoing standstill limitation will be reinstated once the percentage of Total Voting Power beneficially owned by such other person or group falls below five percent (5%); (iii) another person or group hereafter acquires Voting Stock that results in such person or group being required to be voted upon by file a Schedule 13G, or other similar or successor schedule or form, indicating that such other person or group beneficially owns or has the shareholders right to acquire Voting Stock with aggregate Voting Power of more than nineteen and ninety-nine one hundredths percent (19.99%) of the Total Voting Power of the Company;
; PROVIDED, HOWEVER, that the foregoing standstill limitation will be reinstated once the percentage of Total Voting Power beneficially owned by such other person or group falls below five percent (vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a5%); providedor (iv) another person or group orally or in writing contacts the Company and advises the Company of such person's or group's intention to commence a tender or exchange offer that, if so commenced, would result in a suspension pursuant to clause (i) above (e.g., a "bear hug" offer); PROVIDED, HOWEVER, that this clause shall not prohibit a Shareholder from making a confidential request the foregoing standstill limitation will be reinstated if such intention is withdrawn in writing or proposal other reasonable evidence of such withdrawal is provided to the Chief Executive Officer or Chairman Investor. The Company shall notify the Investor in writing of the Board occurrence of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to event described in clauses (i) through (viiiv) of Section 2.3(a)the immediately preceding sentence as soon as practicable following the Company's becoming aware of any such event, or announce an intention to doand in any case, or enter into shall provide the Investor written notice of any arrangement or understanding or discussions with others to do, any such event within twenty-four (24) hours of the actions restricted or prohibited under clauses (i) through (vii) occurrence of Section 2.3(a)any such event.
(b) Nothing in Section 2.3(a) The Investor will limit not be obliged to dispose of any Voting Stock if the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 aggregate percentage of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability Total Voting Power of the Shareholders’ director designee elected Company represented by Voting Stock beneficially owned by the Investor or which the Investor has a right to acquire is increased beyond the Board Standstill Percentage (i) as a result of a recapitalization of the Company or a repurchase or exchange of securities by the Company or any other action taken by the Company or its affiliates; (ii) as the result of acquisitions of Voting Stock made during the period when the Investor's "standstill" obligations are suspended pursuant to Section 1.1 10.1(a); (iii) as a result of an equity index transaction, provided that Investor shall not vote such shares; (iv) by way of stock dividends or other distributions or rights or offerings made available to holders of shares of Voting Stock generally; (v) with the consent of a simple majority of the authorized members of the Company's Board of Directors; or (vi) as part of a transaction on behalf of Investor's Defined Benefit Pension Plan, Profit Sharing Retirement Plan, 401(k) Savings Plan, Sheltered Employee Retirement Plan and Sheltered Employee Retirement Plan Plus, or any successor or additional retirement plans thereto (collectively, the "RETIREMENT PLANS") where the Company's shares in such Retirement Plans are voted by a trustee for the benefit of Investor employees or, for those Retirement Plans where Investor controls voting, where Investor agrees not to vote or otherwise exercise his or her legal duties or otherwise act any shares of such Retirement Plan Voting Stock that would cause Investor to exceed the Standstill Percentage.
(c) As used in his or her capacity as a member this Section 10, (i) the term "VOTING STOCK" means the Common Stock and any other securities issued by the Company having the ordinary power to vote in the election of directors of the BoardCompany (other than securities having such power only upon the happening of a contingency that has not occurred), (ii) the term "VOTING POWER" of any Voting Stock means the number of votes such Voting Stock is entitled to cast for directors of the Company at any meeting of shareholders of the Company, and (iii) the term "TOTAL VOTING POWER" means the total number of votes which may be cast in the election of directors of the Company at any meeting of shareholders of the Company if all Voting Stock was represented and voted to the fullest extent possible at such meeting other than votes that may be cast only upon the happening of a contingency that has not occurred. For purposes of this Section 10, the Investor shall not be deemed to have beneficial ownership of any Voting Stock held by a pension plan or other employee benefit program of the Investor if the Investor does not have the power to control the investment decisions of such plan or program.
Appears in 1 contract
Samples: Securities Purchase and Investor Rights Agreement (Panja Inc)
Standstill. For the period (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 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) Until through (j) below not approved by the later Board of (x) the three (3)-year anniversary Directors of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder Company; Purchaser will not, directly and will cause its associates (as such term is defined under the Exchange Act) and its affiliates whom it controls (as such term is defined under the Exchange Act) not to, unless expressly requested in writing, in advance, by the Company or indirectly:
(i) acquire, offer or propose pursuant to acquire, solicit an offer to sell or agree to acquirea written agreement with the Company, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent any manner whatsoever:
(2%a) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement[Intentionally Left Blank];
(iib) except as otherwise expressly provided make, propose to make, or participate in this Agreementany merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, or other similar transaction involving the Company;
(c) solicit, make, or 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” to vote (as such terms are used defined in the proxy rules of the SEC Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act)) or consents from any holders of any securities of the Company;
(d) call or seek to have called any meeting of the stockholders of the Company or any subsidiary thereof or seek or act, whether subject toalone or in concert with others, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever whatsoever, any Person person or entity with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeCompany;
(iiie) except as otherwise expressly provided in this Agreement, form, join or in 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vf) 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 two percent (2%) or more of any voting securities Directors of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessubsidiaries;
(vig) 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 of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or subsidiary thereof inconsistent with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3letter agreement, which including, without limitation, any intent, purpose or plan that requires the Company may accept to waive the benefit of or reject in its sole discretion, so long as amend any such request is made in a manner that does not require public disclosure thereof; orprovision of this letter agreement;
(viiih) take any action that which might result in require the Company having to make a public announcement regarding any matter of the matters referred to types set forth in clauses (ia) through (viig) of this Section 2.3(a)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 dotake, 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 arrangement person to take any action of the type referred to in clauses (a) through (i), inclusive, of this Section 6.1. The expiration of the Standstill Period shall not terminate or understanding or discussions with others to do, otherwise affect any of the actions restricted or prohibited under clauses (i) through (vii) other provisions of Section 2.3(a)this letter agreement.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Purchase Agreement (Corning Natural Gas Holding Corp)
Standstill. (a) Until the later of (x) the three (3)-year anniversary Each member of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Group agrees that, without during the prior approval of the BoardStandstill Period, such Shareholder 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:
(ia) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or acquire beneficial ownership in concert with others, by purchase or otherwise, two percent (2%) or more excess of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under 4.9% of the Exchange Act) outstanding shares of Common Shares, any securities convertible Stock (based on the latest annual or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities quarterly report of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of Company filed with the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including SEC pursuant to Section 2.1 of this Agreement;
(ii13 or 15(d) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from other than the federal proxy rules, seek acquisition of equity-based compensation pursuant to advise or influence in any manner whatsoever any Person with respect to Section 9 hereof and the voting exercise of any voting securities of the Company options or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way conversion of any public communication or other communications to securityholders intended for convertible securities comprising such purposeequity-based compensation;
(iiib) except submit 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 nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as otherwise expressly provided in permitted by this Agreement, ;
(c) 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 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) or to the extent such a group may be deemed to result with the Company or any of their respective Affiliates as a result of this Agreement;
(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 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 (as defined below) 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) call, 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, 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;
(ivf) acquireeffect 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 acquire effect, or agree to acquirecause or participate in, directly or indirectly, alone or in concert with othersany way assist, by purchasesolicit, exchange 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 any material assets or intangible, businesses of the Company or any of its Affiliates or subsidiaries, (ii) direct any transfer or indirect rights, warrants acquisition of shares of Common Stock or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting other securities of the Company or any securities convertible into of any Affiliate of the Company if, after completion of such transfer or exchangeable acquisition or exercisable for two percent proposed transfer or acquisition, a person or group (2%other than the Shareholder Group and their Affiliates) would 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 transferee acquiring beneficial ownership of more than 5% of the outstanding shares of Common Stock shall not be included in this clause (ii) or more constitute a breach of this Section 6, (iii) any voting securities tender offer or assets exchange offer, merger, change of the Companycontrol, except for such assets as are then being offered for sale by acquisition or other business combination involving the Company or any of its Affiliates;
subsidiaries or (viiv) otherwise actany recapitalization, alone restructuring, liquidation, dissolution or in concert other extraordinary transaction with others, to seek to propose respect to the Company or any of its shareholders subsidiaries (any amalgamationof the transactions or events described in (i) through (iv) above are referred to as a “Sale Transaction”), mergerunless such Sale Transaction has been approved by a majority of the Board and has been announced by the Company; provided, business combinationthat this paragraph shall not require members of the Shareholder Group to vote in favor of a Sale Transaction that was approved by the Board;
(g) publicly disclose, tender or exchange offercause or facilitate the public disclosure (including, restructuringwithout limitation, recapitalizationthe filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, liquidation member of the media or other transaction 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 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) disparage the Company, any member of the Board or any officer or key employee of the Company with respect to any matter relating to the Company or otherwise seekthe events leading to the entering into of this Agreement, alone provided that this provision shall not apply to (i) compelled testimony, either by legal process, subpoena or in concert with othersotherwise, or to control, change communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure; (ii) communications that are required by an applicable legal obligation or influence the management, board of directors are subject to contractual provisions providing for confidential disclosure; or policies (iii) communications relating to members of the Company or nominate any Person Board other than in their capacity as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders directors of the Company;
(viii) make enter into any request arrangements, understandings or proposal agreements (whether written or oral) with, or advise, finance, assist or encourage any other person that engages, or offers or proposes to amendengage, waive or terminate in any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofforegoing; or
(viiij) take or cause or induce or assist others to take any action that might result in the Company having to make a public announcement regarding inconsistent with any of the matters referred foregoing; provided, that, notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit (x) Xxxxx from engaging in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise lawful act in his or her capacity as a member director of the BoardCompany 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) the Shareholder Group from making public statements, engaging in discussions with other shareholders, soliciting proxies or voting any shares or proxies with respect to any Sale Transaction that has been approved by a majority of the Board and has been announced by the Company.
Appears in 1 contract
Samples: Shareholder Agreement (Intevac Inc)
Standstill. (a) Until the later of (x) the three (3)-year 3) year anniversary of the Closing Closing, and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors director for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Stockholder agrees that, without the prior approval of the Board, such Shareholder Stockholder will notnot (in its own capacity or with or through any other Person), directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of any securities of the Company or its Subsidiaries, including shares of Common SharesStock, any securities convertible or exchangeable into shares of Common Shares Stock or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the CompanyCompany or any of its Subsidiaries, excluding any shares of Common Shares Stock or other securities acquired (A) pursuant to a conversion or redemption of the any shares of Series A Preference SharesPreferred Stock, bonus issue, dividend or distributions distribution by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreementor (B) by a Person from the Company in connection with such Person’s service as a director or Board observer;
(ii) 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 terms are used in the proxy rules of the 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) whether subject to, to or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or any of its Subsidiaries or seek to propose to influence, advise, change or control the management, board of directorsdirectors (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 securityholders their respective equityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement or as required in connection with the consummation of the transactions contemplated by the Investment Agreement, form, join or in any way participate or act in a “group” within the meaning of (as such term is used in Section 13(d)(3) of the Exchange Act Act) with respect to any voting securities of the CompanyCompany or any of its Subsidiaries;
(iv) 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 or intangible, ) of the Company or any of its Affiliates Subsidiaries, or (iiB) any direct or indirect rightsright, warrants warrant or options option to acquire any assets asset of the Company or any of its AffiliatesSubsidiaries, except for in the event any such assets asset as are is then being offered for sale by the Company or any of its AffiliatesSubsidiaries;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) any securities or more of any voting securities assets of the Company or any of its Subsidiaries or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the CompanyCompany 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 AffiliatesSubsidiaries;
(vi) 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 Company, any of its Subsidiaries or any of its shareholders their respective equityholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other similar transaction to or with the Company or any such Subsidiary (or 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, board of directors or policies of the Company or any such Subsidiary or nominate any Person as a director who is not nominated by the then then-incumbent directorsBoard, or propose any matter to be voted upon by the shareholders stockholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of this Section 2.3(a2.2(a); provided, provided that this clause shall not prohibit a Shareholder Stockholder from making a confidential request or proposal to the Chief Executive Officer or Chairman Chair of the Board of the Company seeking an any amendment or waiver of the provisions any provision of this Section 2.32.2, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through - (vii) of this Section 2.3(a2.2(a), or announce an any intention to do, or enter into any arrangement or arrangement, understanding or discussions discussion with others any one or more other Persons to do, any of the actions restricted or prohibited under clauses (i) through (viii)—(vii) of this Section 2.3(a2.2(a).
(b) Nothing in Section 2.3(a2.2(a) will limit the Shareholder’s Stockholders’ ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 2.3 below), convert (subject to Section 7 (C) of Article VII of the Series A Certificate) or otherwise exercise the rights of its shares of Common Shares Stock or shares of Series A Preference Shares Preferred Stock or the ability of the ShareholdersStockholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her its legal duties or otherwise act in his or her its capacity as a member of the Board.
Appears in 1 contract
Samples: Equity Commitment and Investment Agreement (Catalent, Inc.)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing Xxxxx covenants and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without for a period of seven years from the prior approval date of this Agreement, unless specifically invited in writing by the BoardCompany, neither he, his affiliates (as such Shareholder will notterm is defined under the Securities Act of 1934 (the "Act")), nor investment entities with respect to which he has sole investment control (including individual investment accounts with respect to which he has discretionary control) shall, directly or indirectly:
, (i) acquire, offer agree to acquire or make any proposal to acquire any securities (or beneficial ownership thereof) or, material portion of the assets of the Company or any of its subsidiaries, except for the exercise of the 1998 Options received by Xxxxx pursuant to the Stock Option Agreement dated as of October 19, 1998 (the "Stock Option Agreement") in consideration for entering into the Consulting Agreement dated September 19, 1997, as amended pursuant to Section 9 hereof (the "Consulting Agreement"), (ii) propose to acquireenter into any tender or exchange offer, solicit an offer merger or other business combination involving the Company or any of its subsidiaries or to sell or agree to acquirepurchase, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities a material portion of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion assets of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant any of its subsidiaries, (iii) effect, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect, offer or propose (whether publicly or otherwise) to effect, propose or participate in any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Transaction Documents Company or any of its subsidiaries, (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(iiiv) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of “"proxies” to vote " (as such terms are used in the proxy rules of the SEC promulgated pursuant Securities and Exchange Commission) or consent to Section 14 of the Exchange Act), whether subject tovote, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person person with respect to the voting of any voting securities of the Company or seek to propose to influenceany of its subsidiaries, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iiiv) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rightssubsidiaries, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change control or influence the management, board Board of directors Directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directorsCompany, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make disclose any intention, plan or arrangement inconsistent with the foregoing, (viii) request any item be placed before the Company's stockholders for a vote thereof or proposal (ix) advise, assist or encourage any other persons in connection with any of the foregoing. Xxxxx also agrees that during such period not to amend(x) request the Company (or any of its directors, officers, employees or agents), directly or indirectly, to amend or waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request Agreement (including this sentence) or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viiiy) take any action that which might result in require the Company having to make a public announcement regarding any of the types of matters referred to set forth in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)this paragraph.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Each Investor agrees that, without for the prior approval period commencing on the date of this Agreement and ending on the Board, such Shareholder will not, directly or indirectly:
earliest of (i) acquirethe thirtieth (30th) calendar day preceding the opening of the nomination window for submission of director nominees at the Company’s 2021 Annual Meeting, offer or propose (ii) a material breach by the Company of its obligations under this Agreement which is not cured within five (5) business days after written notice from any Investor, (iii) an announcement by the Company of any type of transaction involving a change of control in the Company and (iv) the adoption by the Board of any amendment to acquireany of the organizational documents of the Company that would impair the ability of stockholders to submit director nominations in connection with stockholder meetings after the 2020 Annual Meeting (the “Standstill Period”), solicit an offer to sell or agree to acquireneither it nor any of its Affiliates will, and it will cause each of its Affiliates not to, directly or indirectly, in any manner other than pursuant to Section 6(c), acting alone or in concert with others, :
(i) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 the SEC under the Exchange ActAct or otherwise) or any notice of Common Shares, any securities convertible nomination or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquireother business for consideration, or securities convertible into or exchangeable for, two percent (2%) or more of nominate any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant candidate for election to the Transaction Documents Board (as defined in the Investment Agreementincluding by way of Rule 14a-11 of Regulation 14A), including pursuant to Section 2.1 of other than as expressly permitted by this Agreement;
(ii) except as otherwise expressly provided in this Agreement, 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 “proxiesparticipant in a solicitation” to vote (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC promulgated pursuant to Section 14 Schedule 14A of Regulation 14A under the Exchange Act), whether subject to) in opposition to the recommendation or proposal of the Board, or exempt from the federal proxy rulesrecommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence in any manner whatsoever any Person other person 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 seek to propose to influence, advise, change or control persons appointed as proxies by the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeBoard;
(iii) except as otherwise expressly provided in this Agreementseek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(iv) 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 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) except as specifically provided in Section 1 and Section 2 of this Agreement, 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 Company;
(ivviii) 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 14.99% of the Company’s outstanding Common Stock (which shall not include 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 assets, tangible Investors or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its their Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, however, nothing herein shall prevent any Investor from confidentially seeking a waiver from this provision;
(x) short sell the Company’s capital stock, or otherwise pledge, hypothecate or put any liens against the Company’s capital stock, except that this clause shall not prohibit an Investor may partake in customary margin transactions with a Shareholder from making broker regulated by FINRA;
(xi) disclose publicly, or privately in a confidential request manner that could reasonably be expected to become public, any intention, plan or proposal to arrangement inconsistent with the Chief Executive Officer foregoing;
(xii) take any action challenging the validity or Chairman enforceability of the Board of the Company seeking an amendment or waiver of the any provisions of this Section 2.3, 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 thereof3; or
(viiixiii) take enter into any action that might result in the Company having to make a public announcement regarding agreement, arrangement or understanding concerning any of the matters referred foregoing (other than this Agreement) or encourage or solicit any person to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, undertake any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing activities.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. (a) Until In consideration of, and only upon, the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled Confidential Information being furnished to designate any directors for nomination Valassis pursuant to Section 1.1 (or have irrevocably waived their right)this Agreement, each Shareholder Valassis agrees that, without for a period of 12 months from the prior approval date of this Agreement (the Board“Standstill Period”), such Shareholder will Valassis shall not, directly or indirectlyindirectly (through any of its Affiliates or its and their respective Representatives with knowledge of the Possible Transaction), unless specifically approved in advance by the Board of Directors of RetailMeNot (the “Board”) in writing:
(ia) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal or offer to acquire or effect, directly or indirectly, by purchase means of purchase, merger, business combination or otherwisein any other manner, two percent (2%) or more beneficial ownership of any securities of RetailMeNot, direct or indirect “beneficial ownership” rights to acquire any securities of RetailMeNot (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) including any derivative securities, rights or options with economic equivalents of Common Sharesownership of any of such securities), any securities convertible right to vote or exchangeable into Common Shares or to direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more the voting of any voting securities of the Company, excluding RetailMeNot or any Common Shares or other securities acquired pursuant to a conversion assets of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;RetailMeNot,
(iib) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant Securities and Exchange Commission) or consents to Section 14 of the Exchange Act), whether subject tovote, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person person with respect to the voting of of, any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;RetailMeNot,
(iiic) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of the Company;RetailMeNot,
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vid) otherwise act, alone or in concert with others, to seek to propose control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of RetailMeNot,
(e) make any public disclosure, or take any action that would reasonably be expected to require RetailMeNot to make any public disclosure, with respect to any of the matters set forth in this Agreement (except as required by applicable Law),
(f) disclose any intention, plan or arrangement inconsistent with the foregoing (except as required by applicable Law), or
(g) enter into any agreements, or advise, assist or encourage any other persons (other than its Representatives or RetailMeNot or its representatives) in connection with any of the foregoing. Notwithstanding the foregoing provisions of this Section 20 or any other provision of this Agreement, (i) nothing in this Agreement shall restrict Valassis or any other person from taking the actions set forth in clauses (a) – (g) following termination of the Standstill Period, (ii) nothing in this Agreement shall prevent Valassis or any person acting on its behalf from making any proposal regarding a business combination or other transaction directly to the Company Board or any Chief Executive Officer of RetailMeNot on a confidential basis and from discussing such proposal with such persons if such proposal would not reasonably be expected to require RetailMeNot to make a public announcement and (iii) the Standstill Period shall terminate, and the restrictions set forth in this Section 20 shall terminate and be of no further force and effect, (A) if RetailMeNot enters into a definitive agreement with a party other than Valassis or its shareholders any amalgamationAffiliates with respect to, or publicly announces that it plans to enter into, a transaction involving 30% or more of RetailMeNot’s then-outstanding equity securities or assets (or equity securities of subsidiaries of RetailMeNot holding assets) constituting 35% or more of the consolidated assets of RetailMeNot and its subsidiaries (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, recapitalizationsale, liquidation equity issuance or otherwise) (an “Alternative Transaction”), (B) if RetailMeNot publicly announces or confirms that it is in discussions with one or more parties with respect to an Alternative Transaction, or (C) in the event of any announcement or commencement by any person, entity or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) of a tender or exchange offer to acquire RetailMeNot’s equity securities which, if successful, would result in such person, entity or group owning, when combined with any other transaction to equity securities of RetailMeNot owned by such person, entity or group, 30% or more of RetailMeNot’s then outstanding equity securities. In the event that, during the Standstill Period, in connection with the Company or otherwise seekevaluation, alone or in concert with othersdiscussion, to control, change or influence the management, board negotiation and/or implementation of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
possible Alternative Transaction (viii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit RetailMeNot enters into a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner confidentiality agreement that does not require public disclosure thereof; or
include “standstill” restrictions similar to those included in this Section 20, or (viiiii) take RetailMeNot enters into a confidentiality agreement that includes “standstill” restrictions for a term shorter than twelve months or otherwise less restrictive in any action that might result material respect than the restrictions set forth in this Section 20, then RetailMeNot shall promptly inform Valassis in writing and, in the Company having to make a public announcement regarding any case of the matters referred to in clauses preceding clause (i) through (vii) of Section 2.3(a), or announce an intention to dothe Standstill Period shall terminate or, or enter into any arrangement or understanding or discussions with others to do, any in the case of the actions restricted or prohibited under clauses preceding clause (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 aboveii), Transfer (subject such shorter term and/or other materially less restrictive provision(s) shall supersede and be deemed to replace the twelve month restrictive period and/or other more restrictive provision(s) set forth in this Section 2.4 below)20, convert (subject to Section 7 in each case immediately and without any further action of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Boardparties.
Appears in 1 contract
Samples: Confidentiality Agreement (Harland Clarke Holdings Corp)
Standstill. (a) Until Mercacorp and, if applicable, such other Holder acknowledges that it is a condition to the later Company's agreement to issue this Warrant to Mercacorp that Mercacorp and, if applicable, such other Holder agree that it will not, and will direct their respective Affiliates and Associates, and directors, officers, employees and agents of Mercacorp and, if applicable, such other Holder and their respective Affiliates and Associates, not to, directly or indirectly, for a period beginning on the date hereof and ending on the first to occur of (xi) November 10, 2001, or (ii) the three (3)-year anniversary expiration of the Closing and twelve (y12) month period immediately following the date on which no nominee designated all 750,000 Warrant Shares have been issued under this Warrant (the "Standstill Period"), unless in any such case specifically invited in writing to do so by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of Directors of the BoardCompany:
(a) purchase, such Shareholder will notacquire or own, or offer or agree to purchase, acquire or own, directly or indirectly:, Common Stock (or securities convertible or exercisable into, or exchangeable for, Common Stock) which at any time would result in Mercacorp and, if applicable, such other Holder in the aggregate owning, directly or indirectly, more than 1,650,000 shares of Common Stock;
(ib) acquiremake, offer or in way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) or become a "participant" in an "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or seek to advise or influence any person with respect to the voting of any voting securities of the Company;
(c) execute any written consent in lieu of a meeting of holders of securities of the Company or any class thereof unless such written consent is solicited by the Board of Directors of the Company;
(d) initiate, propose or otherwise solicit stockholders for the approval of one or more stockholder proposals with respect to acquirethe Company as described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person to initiate any stockholder proposal;
(e) acquire or affect the control of the Company or directly or indirectly participate in or encourage the formation of any "group" (within the meaning of Section 13(d)(3) of the Exchange Act) which owns or seeks to acquire ownership of voting securities of the Company, solicit an offer or to sell acquire or agree affect control of the Company;
(f) call or seek to acquirehave called any meeting of the stockholders of the Company;
(g) seek election to or seek to place a representative on the Board of Directors of the Company or seek the removal of any member of the Board of Directors of the Company;
(h) otherwise act, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise control or to influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, policies or affairs or strategy of the Company Company, or propose or seek to effect or negotiate with or provide financial assistance (by way of loan, capital contribution or otherwise) or information to any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act party with respect to any form of business combination transaction (including, without limitation, a merger, consolidation or acquisition or disposition of significant assets of the Company or any other entity) with the Company or any affiliate thereof or any restructuring, recapitalization or similar transaction with respect to the Company or any affiliate thereof;
(i) instigate, encourage, assist or render advice to or make any recommendation or proposal to any person or other entity to engage in any of the actions covered by clauses (a) through (h) of this Section 22, or render advice with respect to voting securities of the Company;
(ivj) acquireexcept to the extent required by law, offer make any public statement (or make available to acquire or agree any member of the news media any information) with respect to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assetsmatters covered by clauses (a) through (h) of this section 22, tangible or intangiblewith respect to the terms and conditions of, of the Company or any of its Affiliates or (ii) direct or indirect rightsthe facts related to, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofWarrant; or
(viiik) take request any action that might result in waiver, modification, termination or amendment of this Section 23 or the relinquishment by the Company having to make a public announcement regarding of any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions rights with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)respect thereto.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. (a) Until So long as the later of (x) the three (3)-year anniversary Company has not breached this Agreement, each member of the Closing Investor Group and (y) their Affiliates severally, and not jointly, agrees that during the period commencing on the date on which no nominee designated by the Majority Approved Holders serves hereof and ending on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees thatTermination Date, without the prior approval written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, such Shareholder he, she or it will not, directly and will cause each of his, her or indirectlyits officers, agents and other Persons acting on his, her or its behalf not to, and will use commercially reasonable efforts to cause his, her or its respective Associates (as defined in Section 11 hereof) including but not limited to those Associates identified in the Schedule 13D not to:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangeengage, or in any way participate, directly or indirectly, in any financing for “solicitation” (as such term is defined in Rule 14a-1(l) promulgated by the purchase SEC under the Exchange Act) of two percent proxies or consents (2%whether or not relating to the election or removal of directors), advise, encourage or influence any Person (as defined in Section 11 hereof) or more with respect to the voting of any voting securities Voting Securities with respect to the 2006 Annual Meeting or the 2007 Annual Meeting in a manner that is inconsistent with the terms of this Agreement; or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) stockholders of the Company for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 or exempt solicitations pursuant to Rule 14a-2(b)(1) Rule 14a-2(b)(2) under the Exchange Act or otherwise induce or encourage any securities convertible into other Person to initiate any such stockholder proposal;
(ii) form, join or exchangeable in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than a “group” that includes all or exercisable for two percent some lesser number of the Persons identified as “Reporting Persons” in the Schedule 13D, but does not include any other members who are not currently identified as Reporting Persons;
(2%iii) other than as previously disclosed in the Schedule 13D, deposit any Voting Securities in any voting trust or more subject any Voting Securities to any arrangement or agreement with respect to the voting of any voting securities Voting Securities, except as expressly set forth in this Agreement;
(iv) enter into any arrangements, understanding or assets agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the Companyforegoing, or make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing;
(v) request the Company or its advisers, directly or indirectly, to amend or waive any of the provisions of this Agreement, except for such assets as are then being offered for sale by the Company amendments or any waivers not of its Affiliatesa material nature;
(vi) otherwise act, alone or in concert take any initiative with others, to seek to propose respect to the Company or any of its shareholders any amalgamation, merger, business combination, tender subsidiaries which involves making a public announcement or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with that could require the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board any of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having subsidiaries to make a public announcement regarding such initiative or any of the matters activities referred to in clauses any of these subparagraphs (i) through (vi); or
(vii) of Section 2.3(a), take or announce an intention to do, cause or enter into any arrangement or understanding or discussions with induce others to do, take any action inconsistent with any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing in Section 2.3(a) will limit It is understood and agreed that the Shareholder’s ability foregoing shall not be deemed to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 prohibit any of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability members of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member Investor Group who are directors of the BoardCompany from engaging in any lawful acts in the exercise of their fiduciary duties as directors of the Company.
Appears in 1 contract
Standstill. (a) Until Except as otherwise provided in this Agreement or the Certificate of Designations, until the later of (xi) the three one (3)-year anniversary of 1) year after the Closing and (yii) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are Purchaser is no longer entitled to designate any directors for nomination one director to the Board of Directors pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that4.1, without the prior approval written consent of the BoardCompany, such Shareholder the Purchaser will notnot at any time, directly nor will it cause any of its Affiliates to: (a) effect or indirectly:
(i) acquireseek, offer or publicly propose to effect, or publicly announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, 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 (whether publicly or otherwise) to effect or participate in, two percent (2%i) any acquisition of any equity securities (or beneficial ownership thereof) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants rights or options to acquireacquire any equity securities (or beneficial ownership thereof), or any securities convertible into or exchangeable for, two percent for any such equity securities (2%or beneficial ownership thereof) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired than by Purchaser and its Affiliates in a transaction pursuant to a which Purchaser and its Affiliates would beneficially own no more than five percent (5%) in the aggregate of the outstanding shares of the Company’s Common Stock (excluding conversion of the shares of Series A Preference SharesPreferred Stock and any Conversion Shares then held by the Purchaser or such Affiliate) after such transaction or any exercise of the Purchaser’s rights to acquire New Securities pursuant to Article VI; (ii) any tender or exchange offer, bonus issue, dividend merger or distributions by other business combination involving the Company or otherwise acquired pursuant to its Subsidiaries or assets of the Transaction Documents Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(iib) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of SEC) of proxies or consents with respect to the election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the SEC promulgated pursuant to Section 14 SEC) in any such solicitation of the Exchange Act), whether subject to, proxies or exempt from the federal proxy rules, consents; (iii) seek to advise advise, encourage or influence in any manner whatsoever any Person with respect to the voting or disposition of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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 (iv) acquireinitiate, offer to acquire encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent “vote no,” “withhold” or similar campaign; (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vic) otherwise act, alone or in concert with others, act to seek representation on or to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change control or influence the management, board of directors management or policies of the Company or nominate any Person as a director who is not nominated by to obtain representation on the then incumbent directors, or propose any matter to be voted upon by the shareholders Board of Directors of the Company;
Company (vii) make any request or proposal beyond their right to amend, waive or terminate any provision do so based on their representation on the Board of Directors pursuant to Section 2.3(a4.1); provided, that this clause shall not prohibit a Shareholder from making a confidential request or (d) publicly submit any shareholder proposal to the Chief Executive Officer Company, or Chairman (e) publicly propose any change of control or other material transaction involving the Board of the Company seeking an amendment or waiver of the provisions of Company; it being understood that nothing in this Section 2.34.4 shall (v) restrict or prohibit a Series A Director or Purchaser Nominee, as applicable, from taking any action, or refraining from taking any action, which the Company may accept he or reject in its sole discretionshe determines, so long as any such request is made in a manner that does not require public disclosure thereof; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity reasonable discretion, is necessary or appropriate in light of his or her fiduciary duties as a member of the BoardBoard of Directors, (w) restrict or prohibit the making or submission to the Company and/or the Board of Directors any proposal by the Purchaser Parties that would not reasonably be expected to result in the Company being obligated to publicly disclose such proposal, (x) restrict or prohibit participation in rights offerings made by the Company to all holders of Common Stock, (y) restrict or prohibit the Purchaser’s acquisition, disposition, sale or Transfer of the Purchased Shares (including the accretion of dividends thereon and any dividends payable in any other security) or Conversion Shares issuable upon conversion of the Purchased Shares, in each case, in accordance with the terms of this Agreement and the Certificate of Designations or (z) limit or restrict any Transfer pursuant to a Permitted Loan or any foreclosure thereunder or Transfer in lieu of a foreclosure thereunder.
Appears in 1 contract
Standstill. (a) Until During the later Standstill Period, the Atairos Stockholder shall not, and shall cause each member of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will notAtairos Group not to, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectlyin any manner, alone or in concert with others, by purchase or otherwise, two percent (2%) or more take any of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities following actions without the prior written consent of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;:
(iii) except as otherwise expressly provided in this Agreementmake, makeengage in, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote proxies (as such terms are used in the proxy rules of the SEC promulgated pursuant but without regard to Section 14 of the Exchange Actexclusion set forth in Rule 14a-1(l)(2)(iv), whether subject to) or consents to vote, or exempt from the federal proxy rules, seek to advise advise, encourage or influence in any manner whatsoever any Person person with respect to the voting of any voting securities of the Company for the election of individuals to the Board of Directors or seek to propose approve any proposals submitted to influence, advise, change or control a vote of the management, board of directors, policies, affairs or strategy stockholders of the Company that have not been authorized and approved, or recommended for approval, by way the Board of Directors, or 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, other than a “solicitation” or acting as a “participant” in support of the Atairos Designee or all of the nominees of the Board of the Directors at any stockholder meeting, or make or be the proponent of any public communication stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or other communications to securityholders intended for such purposeotherwise);
(iiiii) except as otherwise expressly provided in this Agreement, form, join join, encourage, influence, advise or in any way participate in a any “group” within the meaning of (as such term is defined in Section 13(d)(3) of the Exchange Act Act) with any Third Party with respect to any voting securities of the CompanyCompany or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly permitted by this Agreement;
(iviii) 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 (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, (i) any of the assets, tangible securities or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its AffiliatesSubsidiaries, except for or any warrant, option or other right to acquire any such securities or assets of the Company or any rights decoupled from the underlying securities that would result in Atairos Group Beneficially Owning 33% or more in the aggregate of the outstanding Common Stock; provided that any acquisitions of securities of the Company or rights therein by Atairos Group permitted pursuant to the foregoing provisions of this Section 2.02(a)(iii) shall be made (A) in accordance with applicable securities laws and (B) until after the end of any pending restricted trading period then in effect at the time the Atairos Designee is no longer serving on the Board of Directors, in accordance with the Company’s restricted trading period then in effect during which directors and executive officers of the Company are not permitted to trade under the xxxxxxx xxxxxxx policy of the Company then in effect; and provided further, that nothing herein shall require any shares of Common Stock to be sold to the extent that Atairos Group exceeds the ownership limit under this paragraph as are then being offered for the result of a share repurchase or any other Company action that reduces the number of outstanding shares of Common Stock;
(iv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other Person to effect or seek to effect, offer or propose to effect, cause or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme of arrangement, business combination, recapitalization, reorganization, sale by or acquisition of all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its AffiliatesSubsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction;
(v) arrange(A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) seek representation on the Board of Directors, except in accordance with Section 3.01 so long as such section is in full force and effect, (C) seek any other material, non-ordinary course change in the Company’s management, business or in any way participatecorporate structure, directly or indirectly, in any financing for (D) seek the purchase of two percent (2%) or more removal of any voting securities member of the Board of Directors (other than any Atairos Designee), (E) solicit consents from stockholders or otherwise act or seek to act by written consent with respect to the Company, (F) conduct a referendum of stockholders of the Company or (G) make a request for any securities convertible into stockholder list or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets other Company books and records, whether pursuant to Section 220 of the Company, except for such assets as are then being offered for sale by the Company DGCL or any of its Affiliatesotherwise;
(vi) otherwise act, alone or take any action in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation support of or other transaction make any proposal or request that constitutes: (A) controlling or changing the Board of Directors or management of the Company, including any plans or proposals to change the number or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board term of directors or policies to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, (C) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws that may impede or facilitate the acquisition of control of the Company or nominate by any Person as Person, (D) causing a director who is not nominated by class of securities of the then incumbent directorsCompany to be delisted from, or propose any matter to cease to be voted upon by the shareholders authorized to be quoted on, any securities exchange, or (E) causing a class of equity securities of the CompanyCompany to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vii) make any request to amend or proposal to amend, waive or terminate any provision of Section 2.3(athis Section 2.02(a); provided;
(viii) make any public disclosure, that this clause shall not prohibit a Shareholder from making a confidential request announcement or statement regarding any intent, purpose, plan or proposal with respect to the Chief Executive Officer or Chairman of the Board of Directors, the Company seeking an amendment Company, its management, policies or waiver affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Section 2.3, which Agreement;
(ix) take any action challenging the Company may accept validity or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereofenforceability of this Section 2.02; or
(viiix) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, knowingly assist, knowingly encourage or seek to persuade any Third Party to take any action that might result in the Company having or make any statement with respect to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) The foregoing provisions of Section 2.02(a) shall not be deemed to prohibit the Atairos Stockholder or any of its Affiliates from communicating privately with the Company’s directors, officers or advisors, on topics related to the Company and its business, including strategic considerations, so long as such communications (x) do not include any proposals requiring the action of the Board of Directors in connection therewith and (y) are not publicly disclosed and are not intended to, and would not reasonably be expected to, require any public disclosure. For the avoidance of doubt, the consideration by the Board of Directors of any such communication, in the exercise of its discretion, shall not, in and of itself, cause such communication to be deemed a “proposal requiring the action of the Board of Directors in connection therewith.” If the Company determines to explore a process with respect to a transaction that, if consummated, would result in a Change in Control, the Company shall provide the Atairos Stockholder prompt notice of such decision and, if such process is pursued, shall invite the Atairos Group to participate on the same basis as other Third Party participants.
(c) Nothing in Section 2.3(a) will this Section 2.02 shall limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 any action that may be taken by any Atairos Designee acting solely as a director of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise Company consistent with his or her legal fiduciary duties or otherwise act in his or her capacity as a director of the Company if such action does not include any public announcement or disclosure by such Atairos Designee or any member of Atairos Group.
(d) Notwithstanding anything in this Section 2.02 to the Boardcontrary, the prohibitions and obligations in this Section 2.02 shall immediately terminate and be of no further force or effect and the Company and the Atairos Stockholder and other members of Atairos Group shall be released from further compliance therewith if (i) a Change in Control is consummated, (ii) the Company enters into a definitive agreement providing for a transaction that, if consummated, would result in a Change in Control or (iii) a Third Party makes a Third Party Tender/Exchange Offer.
(e) Notwithstanding anything to the contrary contained herein, the Atairos Stockholder shall be entitled to vote all shares of outstanding Common Stock Beneficially Owned by it in its sole discretion.
(f) Notwithstanding anything in this Section 2.02 to the contrary, the prohibitions in this Section 2.02 shall immediately terminate and be of no force or effect and Atairos Group shall be released from compliance therewith if the Company (i) institutes a voluntary proceeding, or becomes the subject of an involuntary proceeding which involuntary proceeding is not dismissed within 60 days, under any bankruptcy act, insolvency law or any law for the relief of debtors, (ii) has a receiver appointed to manage its affairs, which appointment is not dismissed, vacated or stayed within 60 days or (iii) executes a general assignment for the benefit of creditors.
Appears in 1 contract
Standstill. From the date of this Agreement until 11:59 p.m., Pacific time, on the day of the Company’s 2020 Annual Meeting of Stockholders (such period, the “Restricted Period”), the Nokomis Group will not, and the Nokomis Group will cause each of the Investors and its and their respective Affiliates, Associates principals, directors, general partners, officers, employees, agents and representatives acting on its respective behalf not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant Securities and Exchange Commission (the “SEC”)) of proxies with respect to Section 14 the election or removal of directors or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Exchange Act), whether subject to, SEC) in any such solicitation of proxies or exempt from the federal proxy rules, consents; or (iii) seek to advise advise, encourage or influence in any manner whatsoever any Person with respect to the voting of any voting securities Voting Securities; provided, however, that except as set forth in paragraph 4, nothing herein shall be interpreted to restrict the Investors’ ability to vote their shares on any proposal duly brought before the Company’s stockholders as each member of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeInvestors determines in its sole discretion;
(iiib) except initiate, propose or otherwise “solicit” (as otherwise expressly provided such term is used in this Agreement, form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) proxy rules of the Exchange Act with respect to any voting securities of the Company;
(iv) acquire, offer to acquire or agree to acquireSEC), directly or indirectly, the Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) (i) seek, alone or in concert with others, by purchaseelection or appointment to, exchange or otherwiserepresentation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board; (ii) seek, alone or in concert with others, the removal of any member of the Board; or (iii) make a request for any stockholder list or other similar Company records provided, however, that nothing herein shall prohibit Xx. Xxxxxxx from making such a request in his capacity as a director;
(d) (i) any form or join (whether or not in writing) in a partnership, limited partnership, syndicate or other group, including, without limitation, a “group” as defined pursuant to Section 13(d) of the assetsExchange Act, tangible or intangible, with respect to any Voting Securities (other than any group comprised solely of the Company or any of its Affiliates or Investors); (ii) direct deposit any Voting Securities into a voting trust, arrangement or indirect rightsagreement; or (iii) subject any Voting Securities to any voting trust, warrants arrangement or options to acquire any assets agreement, in each case other than solely with other Affiliates of the Company Nokomis Group with respect to Voting Securities now or any of its Affiliates, except for such assets as are then being offered for sale hereafter owned by the Company or any of its Affiliatesthem;
(ve) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to (i) control or seek to propose control, or influence or seek to influence, the management, the Board or the policies of the Company (including, without limitation, any material change to the capitalization or dividend policy of the Company or any material change in the Company’s management, business or corporate structure); provided, however, that nothing herein shall limit the Investors’ ability to communicate their views with respect to the aforementioned privately to the Board and management of its shareholders the Company; or (ii) seek, propose or make any amalgamationpublic statement with respect to any merger, mergerconsolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transaction involving the Company or its subsidiaries;
(f) with respect to the Company or the Voting Securities, (i) communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) pursuant to the Exchange Act in a manner inconsistent with the provisions of this paragraph 6; (ii) participate in, or take any action pursuant to, any “proxy access” proposal adopted by the SEC; or (iii) conduct any nonbinding referendum or “stockholder forum”;
(g) publicly make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board or the Company, its management, policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including, without limitation, any intent, purpose, plan or proposal that is conditioned on, or would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require the Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(h) other than with other Affiliates of the Investor, enter into any agreements, understandings or arrangements (whether written or oral), with, or advise, finance, assist or encourage, any Person, in connection with any of the foregoing;
(i) sell, offer or agree to sell all or substantially all, directly or indirectly, through swap or hedging transactions, derivative agreements or otherwise, voting rights decoupled from the underlying Voting Securities held by the Investors to any third party; and
(j) (i) make or in any way participate as an offerer (as such term is defined in Schedule TO under the Exchange Act), directly or indirectly, in any tender offer, exchange offer, merger, business combination, recapitalization, liquidation of restructuring, liquidation, dissolution or other extraordinary transaction to or with involving the Company or its securities or assets (it being understood that the foregoing will not restrict the Investors from tendering shares, receiving payment for shares or otherwise seekparticipating 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); or (ii) make, or support any third party in making, any public proposal, either alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of that would reasonably be expected to require the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the types of matters referred to set forth above in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(athis paragraph 6(j).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Nomination Agreement (Telenav, Inc.)
Standstill. (ai) Until During the later period starting on the Effective Date and ending on the earlier of (x) the three (3)-year anniversary termination of the Closing and Collaboration Agreement (other than by Purchaser pursuant to Section 11.2.2 of the Collaboration Agreement) or (y) the date on which no nominee designated that is eighteen (18) months from the Effective Date (the “Restricted Period”), except as expressly approved or invited in writing by the Majority Approved Holders serves on Company, none of Purchaser or any of its controlled Affiliates (the Board “Standstill Parties”) shall, and the Shareholders are no longer entitled to designate Purchaser shall not authorize, instruct or facilitate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectlyStandstill Party to:
(iA) except with respect to the Shares, acquire, offer or seek, propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent ownership (2%) or more of any direct or indirect “including, but not limited to, beneficial ownership” (ownership as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquireof, or securities convertible into or exchangeable formake a tender, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares exchange or other securities acquired pursuant offer to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the acquire any Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this AgreementSecurities;
(iiB) except as otherwise expressly provided in this Agreement, make, “solicit” or in knowingly encourage any way participate in, directly other entity or indirectly, alone or in concert with others, any “solicitation” of person to solicit “proxies” to vote (as such terms are used defined in the proxy rules of the SEC promulgated pursuant to Section 14 of Regulation 14A under the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person ) with respect to any matter subject to a vote of the voting of any voting securities of stockholders the Company or seek to propose to influence, advise, change or control the management, board of its nominees for directors, policiesincluding, affairs but not limited to, any tender offer for Company Securities or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeAcquisition Transaction;
(iiiC) except as otherwise expressly provided with respect to proxies executed in this Agreementconnection with shareholders’ meetings of the Company, form, deposit any Company Securities in any voting trust or subject them to any voting agreement or other agreement of similar effect;
(D) join or in form any way participate in a “group” partnership, limited partnership, syndicate, or other group within the meaning of Section 13(d)(3) of the Exchange Act or advise or knowingly assist or encourage any third party for the purpose of taking any action prohibited by this Section 6(a);
(E) make, effect, cause, initiate or participate in any Acquisition Transaction (as defined below) with respect to any voting securities of the Company;; or
(ivF) acquire, offer make any public proposals 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company directors, officers, employees, agents, representatives, successors or any of its Affiliates;
(v) arrangesecurity holders concerning, or announcing any intention to effect or participate in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose Acquisition Transaction relating to the Company or any of its shareholders any amalgamation, merger, business combination, tender Affiliate or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies successor of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in would require the Company having to make a public announcement regarding the possibility of an Acquisition Transaction with Purchaser or any of its Affiliates. Notwithstanding the foregoing, the restrictions set forth in this Section 6(a) shall not restrict Purchaser from making a confidential, non-public offer or proposal to the Company’s Chief Executive Officer and/or its Board of Directors with respect to an Acquisition Transaction by and between any of the matters referred Standstill Parties and the Company; provided, that the making thereof would not reasonably be expected to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of require public disclosure by the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)Company.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Share Purchase Agreement (Molecular Templates, Inc.)
Standstill. (a) Until Xxxxxx shall not, directly or indirectly, from the date of this Agreement to the later of (x) the three (3)-year anniversary of the Closing and (ya) the date on which that no nominee designated by the Majority Approved Holders Xxxxxx Designee serves on the Board and (b) the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 date immediately following the 2019 Annual Meeting (or have irrevocably waived their rightsuch period, the “Standstill Period”), each Shareholder agrees thatwith respect to the Company and its controlled Affiliates which are not publicly traded entities, without so long as the prior approval Company has not materially breached this Agreement and failed to cure such breach within five business days of the Board, written notice from Xxxxxx specifying any such Shareholder will not, directly or indirectlybreach:
(ia) acquiresolicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) with respect to, offer or propose to acquirefrom the holders of, solicit an offer to sell the Voting Securities of the Company, or agree to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect become a “beneficial ownershipparticipant” (as such term is defined in Rule 13d-3 and Rule 13d-5 Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in or assist any third party in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote or withhold from voting any Voting Securities of Common Sharesthe Company (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(b) encourage, advise or influence any securities convertible other person or exchangeable into Common Shares assist any third party in so encouraging, assisting or direct influencing any person with respect to the giving or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more 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 Company management’s recommendation in connection with such matter);
(c) form or join in a partnership, limited partnership, syndicate or a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, support or participate in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person effort by a third party with respect to the voting matters set forth in this Section 2;
(d) present (or request to present) at any annual meeting or any special meeting of the Company’s shareholders, any proposal for consideration for action by shareholders or propose (or request to propose) any nominee for election to the Board or seek representation on the Board (in each case except pursuant to Section 1(c)) or the removal of any member of the Board;
(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 any annual meeting or special meeting of shareholders) or deposit any Voting Securities of the Company in a voting securities 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), in each case, except as provided in Section 3 below;
(f) call or seek to call any special meeting of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy make any request under Section 624 of the Company by way Business Corporation Law of any public communication the State of New York or other communications to securityholders intended for such purpose;
applicable legal provisions regarding inspection of books and records or other materials (iiiincluding stocklist materials) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates subsidiaries;
(g) institute, solicit, assist or (ii) direct join, as a party, any litigation, arbitration or indirect rights, warrants other proceeding against or options to acquire any assets of involving the Company or any of its Affiliates, except for such assets as are then being offered for sale by current or former directors or officers (including derivative actions) other than to enforce the Company or any provisions of its Affiliatesthis Agreement;
(vh) arrangeseek, propose, participate in, facilitate or in assist any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, third party to seek to or propose to the Company or any of its shareholders any amalgamationmerger, mergerconsolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization, liquidation of extraordinary dividend, significant share repurchase or other similar transaction to or with involving the Company or any of its non-publicly traded controlled Affiliates (collectively, a “Company Extraordinary Transaction”); provided that Xxxxxx shall be permitted to sell or tender his Voting Securities of the Company, and otherwise seekreceive consideration, alone pursuant to any Company Extraordinary Transaction and provided, further that (without limiting the following clause (i)) the Company may waive the restrictions in this clause (h) with the approval of the Board and provided, further, that from the commencement by a third party (not a party to this Agreement or an Affiliate of a party) of any bona fide tender or exchange offer that is not recommended by the Board in concert with othersits Recommendation Statement on Schedule 14D-9 which, if consummated, would constitute a Company Extraordinary Transaction, then Xxxxxx shall similarly be permitted to control, change commence a tender or influence exchange offer for all of the management, board of directors or policies Voting Securities of the Company at the same or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Companyhigher consideration per share;
(viii) make request, directly or indirectly, any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, which the Company may accept or reject in its sole discretion, so long as any such request is made foregoing in a manner that does not would reasonably likely require public disclosure thereof; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares by Xxxxxx or the ability of Company. Notwithstanding the Shareholders’ director designee elected to foregoing, nothing in this Section 2 shall prevent the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act Xxxxxx Designee acting in his or her capacity as a member director of the Company from raising any such matters at the Board. From the date of this Agreement until the end of the Standstill Period, (1) Xxxxxx shall not directly or indirectly make, or cause to be made, by press release or similar public statement to the press or media (including social media), or in an SEC or other public filing, any statement or announcement that disparages (as distinct from objective statements reflecting business criticism of the Company but not of its individual directors or officers (provided that Xxxxxx shall provide advance notice of, and a copy of, any written statement before it is made)) the Company or any of its officers or directors with respect to matters relating to their service at the Company (including any former officers or directors); and (2) neither the Company nor any of its officers or directors shall directly or indirectly make, or cause to be made, by press release or similar public statement to the press or media (including social media), or in an SEC or other public filing, any statement or announcement that disparages (as distinct from objective statements reflecting business criticism (provided that the Company shall provide advance notice of, and a copy of, any written statement before it is made)) Xxxxxx with respect to matters relating to the Company. For the avoidance of doubt, the foregoing restrictions shall not be deemed to apply to advisors of Xxxxxx or the Company who are not acting at the behest of such party. From the date of this Agreement until the end of the Standstill Period, (1) Xxxxxx shall not permit any Xxxxxx Affiliate to do any of the items in this Section 2 that Xxxxxx is restricted from doing and shall not publicly encourage or support any other person to take any of the actions described in this Section 2 that Xxxxxx is restricted from doing and (2) the Company shall not permit any of its controlled Affiliates to do any of the items in this Section 2 that the Company is restricted from doing and shall not publicly encourage or support any other person to take any of the actions described in this Section 2 that the Company is restricted from doing.
Appears in 1 contract
Samples: Shareholder Agreement (CONDUENT Inc)
Standstill. (a) Until The Investor Parties agree that until the later of (xi) 90 days after the three (3)-year anniversary of the Closing and (y) the date first day on which no nominee designated by the Majority Approved Holders Investor Designee serves on the Board and the Shareholders are Investor has no longer entitled to designate any directors for nomination pursuant to Section 1.1 rights (or have has irrevocably waived their its right) under Section 5.10 (except for Section 5.10(f), each Shareholder agrees that) and (ii) the expiration of the Lock-Up Period (the “Standstill Expiration Date”), without the prior written approval of the Board, such Shareholder the Investor Parties will not, directly or indirectly, and will cause their Affiliates not to:
(ia) acquire, offer or propose seek to acquire, solicit an offer to sell or agree to acquire or make a proposal to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any equity securities convertible or exchangeable into Common Shares or direct or indirect rightsrights to acquire any equity securities of the Company, warrants or options to acquire, or any securities convertible into or exchangeable forfor any such equity securities, two percent any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock (2%) solely to the extent that, after giving effect to such acquisition, the Investor Parties and their Affiliates would beneficially own, in the aggregate, greater than 15% of the then outstanding Common Stock (which calculation shall, for the avoidance of doubt, include the notional or more other number of shares of Common Stock specified in the documentation for any Contract to which any of the Investor Parties are party which is designed to produce economic benefits and risks to any of the Investor Parties that correspond substantially to the ownership by the Investor Parties of shares of Common Stock, except in the case of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined such Contract which is settled only in the Investment Agreementcash), including pursuant to Section 2.1 of this Agreement);
(iib) except as otherwise expressly provided in this Agreement, make, make or in any way encourage or participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (whether or not relating to vote (the election or removal of directors), as such terms are used in the proxy rules of the SEC promulgated pursuant SEC, to Section 14 of the Exchange Act), whether subject tovote, or exempt from the federal proxy rules, knowingly seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influenceof, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into of its Subsidiaries, or exchangeable call or exercisable seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal for two percent (2%) action by the Company’s stockholders, or more seek election to or to place a representative on the Board or seek the removal of any voting director from the Board;
(c) make 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 more than 50% of the assets, properties or securities of the Company or assets any Subsidiary of the Company, except for such assets as are then being offered for sale by or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of its Affiliatestheir 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;
(vid) otherwise act, alone or in concert with others, to seek to propose to the Company control or influence, in any of its shareholders any amalgamationmanner, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any of its Subsidiaries;
(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 as a director who is not nominated by the then incumbent directorsto do, or propose to advise, assist, knowingly encourage or direct any matter other Person to be voted upon by do, any of the shareholders foregoing;
(g) take any action that would require the Company to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 5.07;
(h) enter into any agreements, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Parties) with respect to any of the foregoing, including 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 in connection with any of the foregoing;
(viii) make request the Company or any request of its Representatives, directly or proposal indirectly, to amend, amend or waive or terminate any provision of this Section 2.3(a)5.07; provided, provided that this clause shall not prohibit a Shareholder the Investor Parties from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.35.07, 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 thereofthereof by any Person; or
(viiij) contest the validity of this Section 5.07 or make, initiate, take or participate in any action demand, Action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 5.07; provided, however, that might result nothing in the Company having to make a public announcement regarding any of the matters referred to in clauses this Section 5.07 will (i1) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s Investor Parties’ ability to vote vote, Transfer or Hedge (subject to Section 1.2 above5.08), Transfer convert shares of Series B Preferred Stock into Common Stock (subject to Section 2.4 below6 of the Series B Certificate of Designations), convert limit or restrict any transfer pursuant to a Permitted Loan or any foreclosure thereunder or transfer in lieu of a foreclosure thereunder, 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 the Investor Parties, tender shares of Common Stock or Series B Preferred Stock into any tender or exchange offer (subject to Section 7 of 5.08), effect an adjustment to the Conversion Rate pursuant to the Series A Certificate) B Certificate of Designations or otherwise exercise rights of under its Common Shares Stock or Series A Preference Shares or B Preferred Stock that are not the subject of this Section 5.07, (2) limit the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 Investor Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the BoardBoard or (3) apply to or otherwise restrict the Wella Sale.
Appears in 1 contract
Samples: Investment Agreement (Coty Inc.)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Each Investor agrees that, without from the prior approval date of this Agreement until the expiration of the BoardStandstill Period, such Shareholder neither it nor any of its Affiliates or Associates will, and it will notcause each of its Affiliates and Associates not to, directly or indirectly, in any manner, acting alone or in concert with others:
(i) 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 purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership of any securities of the Company;
(ii) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise, two percent (2%) or more any notice of nomination or other business for consideration, or nominate any direct candidate for election to the Board (including by way of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(iii) engage in, directly or indirect indirectly, any “beneficial ownershipsolicitation” (as defined in Rule 13d-3 and Rule 13d-5 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquirethe Board, or securities convertible into recommend or exchangeable for, two percent (2%) request or more of induce or attempt to induce any voting securities of the Company, excluding other person to take any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, makesuch actions, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise advise, encourage or influence in any manner whatsoever any Person other person with respect to the voting of any the Common Stock 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 seek to propose to influence, advise, change or control persons appointed as proxies by the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeBoard;
(iiiiv) except as otherwise expressly provided in this Agreement, 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 as set forth in the Schedule 13D on the date hereof;
(v) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders;
(ivvi) acquirevote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vii) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to acquire effect, or agree to acquirecause or participate in, directly or indirectly, alone or in concert with othersany way assist or facilitate any other person to effect or seek, by purchase, exchange offer or propose (whether publicly or otherwise, ) to effect or cause or participate in (iA) any acquisition of the assets, tangible any material assets or intangible, businesses of the Company or any of its Affiliates subsidiaries, or any sale, lease, exchange, pledge, mortgage, or transfer thereof (iiincluding through any arrangement having substantially the same economic or other effect as a sale, lease, exchange, pledge, mortgage, or transfer or assets); (B) 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 of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangesubsidiaries, or in (C) any way participaterecapitalization, directly restructuring, liquidation, dissolution or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert other extraordinary transaction with others, to seek to propose respect to the Company or any of its shareholders subsidiaries;
(ix) make any amalgamationdemands for books and records and other materials pursuant to Section 220 of the DGCL or pursue any litigation related thereto against the Company, mergeror to encourage, business combinationassist or cooperate with any third party with respect to any such demand(s) or litigation;
(x) disclose publicly, tender or exchange offerprivately in a manner that could reasonably be expected to become public, restructuringany intention, recapitalization, liquidation of plan or other transaction to or arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of any provisions of this Section 3(a);
(xii) publicly request that the Company amend or otherwise seekwaive any provision of Sections 2 and 3(a);
(xiii) enter into any agreement, alone arrangement or in concert with others, to control, change or influence the management, board of directors or policies understanding concerning any of the Company foregoing (other than this Agreement) or nominate encourage or solicit any Person person to undertake any of the foregoing activities;
(xiv) provided, however, that nothing in this Section 3(a) or elsewhere in this Agreement shall prohibit (A) an Investor Director, acting in his or her fiduciary capacity as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
, from (vii1) make taking any request action or proposal making any statement at any meeting of the Board or of any committee thereof, or (2) making any statement to amend, waive any Co-Executive Chairman or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman any other director of the Board Company; (B) an Investor Director, acting in his or her fiduciary capacity as a director of the Company, from making any statement or disclosure determined (on advice of outside legal counsel) to be required under the federal securities laws or other applicable laws; (C) any Investor from privately making any statement or expressing or disclosing such Investor’s views in private to any Co-Executive Chairman or the Chief Executive Officer or another other officer or director of the Company; or (D) any Investor, Affiliate or Associate from voting in such manner as it deems appropriate on any matter unrelated to the election of directors of the Company seeking an amendment or waiver of and the provisions of this other matters referenced in Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a2(a).
(b) Nothing As used in Section 2.3(athis Agreement:
(i) will limit the Shareholder’s ability term “Affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified with respect to vote the specific action at issue hereunder; the term “Associate” means any corporation or organization controlled by the person specified, any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as a trustee or in a similar fiduciary capacity, and any relative or spouse of such person, or any relative of such spouse, who has the same home as such person, in each case, with respect to the specific action at issue hereunder; the term “control” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (subject to Section 1.2 aboveincluding not-for-profit), Transfer (subject to Section 2.4 below)general or limited partnership, convert (subject to Section 7 limited liability company, joint venture, estate, trust, association, organization or other entity of the Series A Certificate) any kind or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.nature; and
Appears in 1 contract
Samples: Settlement Agreement (Iroquois Capital Management, LLC)
Standstill. (a) The Executive hereby withdraws all proposals he has made with respect to matters to be addressed at the 2006 CBINV General Shareholders’ Meeting, including, but not limited to, those discussed in the letter from the Executive to Mx. Xxxxxxxx dated March 11, 2006. The Executive further agrees that he will take any and all actions and execute any and all documentation necessary to effectuate such withdrawal as required by the Company. Until the later of fifth (x5th) the three (3)-year anniversary of the Closing date this Agreement becomes binding and enforceable, the Executive hereby agrees that neither he nor any of his affiliates (yas such term is defined in Rule 405 under the Securities Act of 1933, as amended) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate nor his representatives will in any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will notmanner, directly or indirectly:
: (ia) acquireeffect or seek, 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 (whether publicly or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquireeffect, or securities convertible into cause or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined participate in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way advise, assist or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate inin (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company; (ii) any tender or exchange offer, directly merger or indirectlyother business combination involving the Company; (iii) any recapitalization, alone restructuring, liquidation, dissolution or in concert other extraordinary transaction with others, respect to the Company; or (iv) any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant Securities and Exchange Commission) or consents to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of vote any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
Company; (iiib) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “group” within the meaning of (as defined under Section 13(d)(3) 13d-5 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of the Company;
; (iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vic) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change control or influence the management, board of directors directors, Supervisory Board or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
; (vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viiid) take any action that might result in force the Company having to make a public announcement regarding any of the types of matters referred set forth in item (a) above; (e) exercise any rights under Article 114a of Book 2 of the Dutch Civil Code or any right to in clauses request that a shareholder meeting of CBINV be held; or (if) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement discussions or understanding or discussions arrangements with others any third party with respect to do, any of the actions restricted or prohibited under clauses foregoing. The Executive also agrees that the Company shall be entitled to equitable relief, including injunctive relief, in the event of any breach of this Section 10 and that he shall not oppose the granting of such relief. Notwithstanding anything herein to the contrary, the Parties agree that nothing in this Agreement shall affect in any way the Executive’s rights as a shareholder to: (ix) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 sell any shares of the Series A CertificateCompany’s capital stock owned by the Executive; (y) receive dividends, if any, in respect of any shares of the Company’s capital stock owned by the Executive; or otherwise (z) receive notices and other communications from the Company. The Parties agree further that, notwithstanding anything herein to the contrary, the Executive may, as long as he is a shareholder of CBINV, in person or represented by proxy, attend and vote at shareholders meetings of CBINV and exercise rights under Dutch law to address the meeting and to ask questions; provided, however, that neither the Executive nor any of its Common Shares his affiliates or Series A Preference Shares representatives may at any shareholders meeting introduce any resolution not included in the agenda for such meeting or propose any amendment to any resolution, unless such amendment is supported by the ability management of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the BoardCompany.
Appears in 1 contract
Samples: Mutual Release Agreement (Chicago Bridge & Iron Co N V)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder Each Investor agrees that, without from the prior approval date of this Agreement until the expiration of the BoardStandstill Period, such Shareholder neither it nor any of its Affiliates or Associates will, and it will notcause each of its Affiliates and Associates not to, directly or indirectly, in any manner, acting alone or in concert with others:
(i) 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 purchase, tender offer, exchange offer, agreement or business combination or any other manner, beneficial ownership of any securities of the Company;
(ii) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise, two percent (2%) or more any notice of nomination or other business for consideration, or nominate any direct candidate for election to the Board (including by way of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(iii) engage in, directly or indirect indirectly, any “beneficial ownershipsolicitation” (as defined in Rule 13d-3 and Rule 13d-5 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or proposal of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquirethe Board, or securities convertible into recommend or exchangeable for, two percent (2%) request or more of induce or attempt to induce any voting securities of the Company, excluding other person to take any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, makesuch actions, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise advise, encourage or influence in any manner whatsoever any Person other person with respect to the voting of any the Common Stock 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 seek to propose to influence, advise, change or control persons appointed as proxies by the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeBoard;
(iiiiv) except as otherwise expressly provided in this Agreement, 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 as set forth in the Schedule 13D on the date hereof;
(v) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders;
(ivvi) acquirevote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vii) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to acquire effect, or agree to acquirecause or participate in, directly or indirectly, alone or in concert with othersany way assist or facilitate any other person to effect or seek, by purchase, exchange offer or propose (whether publicly or otherwise, ) to effect or cause or participate in (iA) any acquisition of the assets, tangible any material assets or intangible, businesses of the Company or any of its Affiliates subsidiaries, or any sale, lease, exchange, pledge, mortgage, or transfer thereof (iiincluding through any arrangement having substantially the same economic or other effect as a sale, lease, exchange, pledge, mortgage, or transfer or assets); (B) 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 of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangesubsidiaries, or in (C) any way participaterecapitalization, directly restructuring, liquidation, dissolution or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert other extraordinary transaction with others, to seek to propose respect to the Company or any of its shareholders subsidiaries
(ix) make any amalgamationdemands for books and records and other materials pursuant to Section 220 of the DGCL or pursue any litigation related thereto against the Company, mergeror to encourage, business combinationassist or cooperate with any third party with respect to any such demand(s) or litigation;
(x) disclose publicly, tender or exchange offerprivately in a manner that could reasonably be expected to become public, restructuringany intention, recapitalization, liquidation of plan or other transaction to or arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of any provisions of this Section 3(a);
(xii) publicly request that the Company amend or otherwise seekwaive any provision of Sections 2 and 3(a);
(xiii) enter into any agreement, alone arrangement or in concert with others, to control, change or influence the management, board of directors or policies understanding concerning any of the Company foregoing (other than this Agreement) or nominate encourage or solicit any Person person to undertake any of the foregoing activities;
(xiv) provided, however, that nothing in this Section 3(a) or elsewhere in this Agreement shall prohibit (A) an Investor Director, acting in his or her fiduciary capacity as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
, from (vii1) make taking any request action or proposal making any statement at any meeting of the Board or of any committee thereof, or (2) making any statement to amend, waive any Co-Executive Chairman or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman any other director of the Board Company; (B) an Investor Director, acting in his or her fiduciary capacity as a director of the Company, from making any statement or disclosure determined (on advice of outside legal counsel) to be required under the federal securities laws or other applicable laws; (C) any Investor from privately making any statement or expressing or disclosing such Investor’s views in private to any Co-Executive Chairman or the Chief Executive Officer or another other officer or director of the Company; or (D) any Investor, Affiliate or Associate from voting in such manner as it deems appropriate on any matter unrelated to the election of directors of the Company seeking an amendment or waiver of and the provisions of this other matters referenced in Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a2(a).
(b) Nothing As used in Section 2.3(athis Agreement:
(i) will limit the Shareholder’s ability term “Affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified with respect to vote the specific action at issue hereunder; the term “Associate” means any corporation or organization controlled by the person specified, any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as a trustee or in a similar fiduciary capacity, and any relative or spouse of such person, or any relative of such spouse, who has the same home as such person, in each case, with respect to the specific action at issue hereunder; the term “control” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or “persons” shall mean any individual, corporation (subject to Section 1.2 aboveincluding not-for-profit), Transfer (subject to Section 2.4 below)general or limited partnership, convert (subject to Section 7 limited liability company, joint venture, estate, trust, association, organization or other entity of the Series A Certificate) any kind or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.nature; and
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) 3.1 Commencing on the date on which no nominee designated by of this Agreement and until the Majority Approved Holders serves on date that is twelve (12) months after the Board and date of this Agreement (the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right“Standstill Period”), each Shareholder agrees thatStockholder agrees, without on behalf of itself and its Affiliates and Associates, that for so long as such Stockholder Beneficially Owns any Voting Securities, except pursuant to a negotiated transaction with such Stockholder approved by the prior approval board of directors of the Company (the “Board”), such Shareholder each Stockholder will notnot (and will cause its Affiliates and Associates not to), in any manner, directly or indirectly:
(ia) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, effect, initiate, cause or participate in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote acquisition (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange gift or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more Beneficial Ownership of any voting securities of the Company or any securities convertible into of any Subsidiary or exchangeable other Affiliate or exercisable for two Associate of the Company if such acquisition would result in (i) such Stockholder (and its permitted transferees) and its and their respective Affiliates and Associates collectively Beneficially Owning ten percent (210%) or more of the then-outstanding Voting Securities or (ii) any voting securities Group in which such Stockholder (and its permitted transferees) participates collectively Beneficially Owning twenty percent (20%) or assets more of the Company, except for such assets as are then being offered for sale by then-outstanding Voting Securities; or
(b) take any action challenging the validity or enforceability of this Section 3.1(a) of this Agreement unless the Company is challenging the validity or any enforceability of its Affiliates;this Agreement.
3.2 Subject to Section 3.2(b), the provisions of Section 3.1 shall terminate and be of no further force and effect in the event the Board shall have endorsed, approved, recommended, or resolved to endorse, approve or recommend a Company Acquisition Transaction.
(via) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver All of the provisions of this Section 2.3, which the Company may accept or reject 3.1 shall be reinstated and shall apply in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof; or
(viii) take any action that might result full force according to their terms in the Company having to make a public announcement regarding any of the matters referred to in clauses event that: (i) through (vii) if the provisions of Section 2.3(a3.1 shall have terminated as the result of a Company Acquisition Transaction endorsed, approved, recommended by the Board involving a tender offer, and such tender offer (as originally made or as amended or modified) shall have terminated (without closing), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of (ii) if the actions restricted or prohibited under clauses (i) through (vii) provisions of Section 2.3(a3.1 shall have terminated as a result of a Company Acquisition Transaction endorsed, approved, recommended by the Board, and the Board shall have determined not to proceed with such Company Acquisition Transaction (and such Company Acquisition Transaction shall not have closed).
(b) Nothing Upon reinstatement of the provisions of Section 3.1, the provisions of this Section 3.2 shall continue to govern for the remainder of the Standstill Period in the event that any of the events described in Section 2.3(a3.2(a) will limit shall occur. Upon the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 closing of any acquisition of any securities of the Series A Certificate) Company or otherwise exercise rights or options to acquire any such securities by such Stockholder or any of its Common Shares Affiliates or Series A Preference Shares or Associates that would have been prohibited by the ability provisions of Section 3.1 but for the Shareholders’ director designee elected to the Board pursuant to provisions of this Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member 3.2, all provisions of the BoardSection 3.1 and Section 3.2 shall terminate.
Appears in 1 contract
Samples: Share Lock Up and Standstill Agreement (Abacus Life, Inc.)
Standstill. (a) Until Except as otherwise provided in this Agreement or the Certificate of Designations, until the later of (xa) the three one (3)-year anniversary of 1) year after the Closing and (yb) the date on which the Purchaser is no nominee designated by the Majority Approved Holders serves on longer entitled, or waives its right, to designate one director to the Board and the Shareholders are no longer entitled to designate any directors for nomination of Directors pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that4.1, without the prior approval written consent of the BoardCompany, such Shareholder the Purchaser will notnot at any time, directly or indirectly:
nor will it cause any of its Affiliates to: (i) acquireeffect or seek, offer or publicly propose to effect, or publicly announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other person to effect or seek, 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 (whether publicly or otherwise) to effect or participate in, two percent (2%A) any acquisition or series of acquisitions of any equity securities (or beneficial ownership thereof) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants rights or options to acquireacquire any equity securities (or beneficial ownership thereof), or any securities convertible into or exchangeable for, two percent for any such equity securities (2%or beneficial ownership thereof) or more of any voting securities of the Company, excluding such that, after giving effect to such acquisition(s), Purchaser and its Affiliates would increase their beneficial ownership of Common Stock by more than five percent (5%) in the aggregate within any Common Shares or other securities acquired pursuant to a twelve month period; provided, this clause (A) shall not restrict (I) the conversion of the Purchased Notes or the shares of Series A Preference SharesPreferred Stock (or any dividends received thereunder) or the receipt of dividends upon shares of Series A Preferred Stock or (II) any exercise of the Purchaser’s rights to acquire New Securities pursuant to Article VI or (B) any tender or exchange offer, bonus issue, dividend merger or distributions by other business combination involving the Company or otherwise acquired pursuant to its Subsidiaries or assets of the Transaction Documents (as defined in Company or its Subsidiaries constituting a significant portion of the Investment Agreement), including pursuant to Section 2.1 consolidated assets of this Agreement;
the Company and its Subsidiaries; (ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of SEC) of proxies or consents with respect to the election or removal of directors or any other matter or proposal; (iii) become a “participant” (as such term is used in the proxy rules of the SEC promulgated pursuant to Section 14 SEC) in any such solicitation of the Exchange Act), whether subject to, proxies or exempt from the federal proxy rules, consents; (iv) seek to advise advise, encourage or influence in any manner whatsoever any Person with respect to the voting or disposition of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
; (v) arrangeinitiate, encourage or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) “vote no,” “withhold” or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
similar campaign; (vi) otherwise act, alone or in concert with others, act to seek representation on or to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change control or influence the management, board of directors management or policies of the Company or nominate any Person as a director who is not nominated by to obtain representation on the then incumbent directors, or propose any matter to be voted upon by the shareholders Board of Directors of the Company;
Company (beyond their right to do so based on their representation on the Board of Directors pursuant to Section 4.1); (vii) make publicly submit any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or shareholder proposal to the Chief Executive Officer Company; or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take publicly propose any action that might result change of control or other material transaction involving the Company. Nothing in the Company having to make this Section 4.4 shall (v) restrict or prohibit a public announcement regarding Series A Director or Purchaser Nominee, as applicable, from taking any of the matters referred to in clauses (i) through (vii) of Section 2.3(a)action, or announce an intention to dorefraining from taking any action, which he or enter into any arrangement or understanding or discussions with others to doshe determines, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity reasonable discretion, is necessary or appropriate in light of his or her fiduciary duties as a member of the BoardBoard of Directors, (w) restrict or prohibit the making or submission to the Company and/or the Board of Directors any proposal by the Purchaser Parties that would not reasonably be expected to result in the Company being obligated to publicly disclose such proposal, (x) restrict or prohibit participation in rights offerings made by the Company to all holders of Common Stock or Series A Preferred Stock, (y) restrict or prohibit the Purchaser’s acquisition, disposition, sale or Transfer of the Common Stock or Purchased Notes (or shares of Series A Preferred Stock issued upon exchange thereof (or Conversion Shares issued upon conversion thereof)) (including the accretion of dividends thereon and any dividends payable in any other security), in each case, in accordance with the terms of this Agreement and the Certificate of Designations or (z) limit or restrict any Transfer pursuant to a Permitted Loan or any foreclosure thereunder or Transfer in lieu of a foreclosure thereunder.
Appears in 1 contract
Standstill. For the period (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 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) Until through (j) below not approved by the later Board of (x) the three (3)-year anniversary Directors of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of the Board, such Shareholder Company; Purchaser will not, directly and will cause its associates (as such term is defined under the Exchange Act) and its affiliates whom it controls (as such term is defined under the Exchange Act) not to, unless expressly requested in writing, in advance, by the Company or indirectly:
(i) acquire, offer or propose pursuant to acquire, solicit an offer to sell or agree to acquirea written agreement with the Company, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent any manner whatsoever:
(2%a) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement[Intentionally Left Blank];
(iib) except as otherwise expressly provided make, propose to make, or participate in this Agreementany merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, or other similar transaction involving the Company;
(c) solicit, make, or 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” to vote (as such terms are used defined in the proxy rules of the SEC Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act)) or consents from any holders of any securities of the Company;
(d) call or seek to have called any meeting of the stockholders of the Company or any subsidiary thereof or seek or act, whether subject toalone or in concert with others, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever whatsoever, any Person person or entity with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purposeCompany;
(iiie) except as otherwise expressly provided in this Agreement, form, join or in 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vf) 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 two percent (2%) or more of any voting securities Directors of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessubsidiaries;
(vig) otherwise actdisclose an intent, alone purpose, plan or in concert proposal with others, to seek to propose respect to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or subsidiary thereof inconsistent with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3letter agreement, which including, without limitation, any intent, purpose or plan that requires the Company may accept to waive the benefit of or reject in its sole discretion, so long as amend any such request is made in a manner that does not require public disclosure thereof; orprovision of this letter agreement;
(viiih) take any action that which might result in require the Company having to make a public announcement regarding any matter of the matters referred to types set forth in clauses (ia) through (viig) of this Section 2.3(a)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 dotake, 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 arrangement person to take any action of the type referred to in clauses (a) through (i), inclusive, of this Section 6.1. The expiration of the Standstill Period shall not terminate or understanding or discussions with others to do, otherwise affect any of the actions restricted or prohibited under clauses (i) through (vii) other provisions of Section 2.3(a)this letter agreement.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Purchase Agreement (Corning Natural Gas Holding Corp)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant Subject to Section 1.1 (or have irrevocably waived their right4(b), each Shareholder North & Xxxxxxx Group Party agrees thatthat during the period commencing on the date hereof and ending on the Termination Date, without the prior approval written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, such Shareholder it will not, directly or indirectlyand will cause each of its Affiliates, Associates, officers, agents and other Persons acting on its behalf not to:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangeengage, or in any way participate, directly or indirectly, in any financing “solicitation” (as such term is defined in Rule 14a-1(l) promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) 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 defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) shareholders of the Company for the purchase approval of two percent (2%shareholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; induce or attempt to induce any other Person to initiate any such shareholder proposal; or otherwise communicate or seek to communicate with the Company’s shareholders or others pursuant to Rule 14a-1(l)(2)(iv) or more under the Exchange Act; provided, however, that nothing herein will limit the ability of any voting securities North & Xxxxxxx Group Party, or its respective Affiliates and Associates, except as otherwise provided in Section 2(c), to vote its Voting Securities on any matter submitted to a vote of the stockholders of the Company or announce its opposition to any securities convertible into Board-approved proposals not supported by the New Directors or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets limit the ability of the Company, except for such assets New Directors to exercise their rights as are then being offered for sale by members of the Company or any Board while serving as members of its Affiliatesthe Board;
(viii) otherwise actform, alone join or in concert any way participate in any “group” (within the meaning of Rule 13d-5 of Regulation 13D-G under the Exchange Act) with othersrespect to any Voting Securities, to seek to propose to other than the Company Section 13(d) “group” that includes all or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies some lesser number of the Company or nominate North & Xxxxxxx Group Parties, but does not include any Person other members who are not currently identified as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the CompanyNorth & Xxxxxxx Group Party;
(viiiii) make have any request discussions or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to docommunications, or enter into any arrangement or arrangements, understanding or discussions agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with others to do, any of the actions restricted foregoing, or prohibited under clauses make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing;
(iiv) through make any proposal (viiincluding publicly disclose or discuss any proposal) or enter into any discussion regarding any of the foregoing, or make any proposal, statement or inquiry, or disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing; provided, however, that nothing herein will limit the ability of any North & Xxxxxxx Group Party, or its respective Affiliates and Associates, except as otherwise provided in Section 2.3(a2(c), to vote its Voting Securities on any matter submitted to a vote of the stockholders of the Company or announce its opposition to any Board-approved proposals not supported by the New Directors or limit the ability of the New Directors to exercise their rights as members of the Board while serving as members of the Board; or
(v) take or cause or induce others to take any action inconsistent with any of the foregoing.
(b) Nothing Each North & Xxxxxxx Group Party will be released from its standstill obligations set forth in Section 2.3(a4(a) will limit and its obligations under Section 8 on the Shareholder’s ability to vote date that is thirty (subject to Section 1.2 above30) days before the last date on which a shareholder of the Company may submit nominations for the Board in connection with the 2009 Annual Meeting (the “2009 Nomination Deadline”), Transfer (subject to Section 2.4 below), convert (subject to Section 7 if any of the Series A Certificatefollowing conditions (the “Standstill Conditions”) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability have not been satisfied as of the Shareholders’ director designee elected to date that is thirty (30) days before the 2009 Nomination Deadline:
(i) the Board pursuant and management have adopted a three-year business plan;
(ii) the Company has increased transparency through the issuance of quarterly earnings press releases, the holding of quarterly conference calls in which management reports on the Company’s results, plans and progress and is available for questions and the creation of an “investors relations” section on the Company’s website that includes archived press releases and conference call transcripts;
(iii) the Board has interviewed at least two outside investor relations firms and, if appropriate, has engaged an outside investor relations firm; and
(iv) the Company has achieved fiscal year 2009 Operating Income/Loss in accordance with the attached Operating/Loss standards set forth on Schedule B.
(c) In the event the Company fails to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member meet any of the BoardStandstill Conditions set forth in Section 4(b) and the deadline for submitting notice of director nominations for election at the 2009 Annual Meeting has passed, the North & Xxxxxxx Group shall have shall have ten (10) days from the date that the Company files its Annual Report on Form 10-K for the fiscal year ending June 30, 2009 to nominate persons for election as members of the Board at the 2009 Annual Meeting.
(d) Failure to comply with any of the Standstill Conditions may be waived by either New Director.
Appears in 1 contract
Standstill. (a) Until Each Crescendo Party agrees that during the later of (x) the three (3)-year anniversary of the Closing and (y) period commencing on the date on which no nominee designated by the Majority Approved Holders serves hereof and ending on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees thatTermination Date, without the prior approval written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, such Shareholder it will not, directly or indirectlyand will cause each of its Affiliates, Associates, officers, agents and other Persons acting on its behalf not to:
(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 generally on a pro rata basis, provided that any such securities so received shall be subject to the provisions hereof), directly or indirectly, alone whether by purchase, tender or in concert with othersexchange offer, by purchase or otherwise, two percent (2%) or more through the acquisition of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) control of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote another Person (as such terms are used term is defined in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act14), whether subject toby joining a partnership, or exempt from the federal proxy ruleslimited partnership, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication syndicate or other communications to securityholders intended for such purpose;
"group" (iii) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) or otherwise, any Voting Securities, if after giving effect to such acquisition it (by itself or together with any other Crescendo Party, their respective Affiliates and Associates and any other Person with whom it, such other Crescendo Party or any such Affiliate or Associate has any agreement, understanding or arrangement with respect to any voting securities Voting Securities) would beneficially own more than 9.9% of the Company;
(iv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by outstanding Voting Securities. For the purposes of computing the beneficial ownership at the time of any purchase, exchange or otherwise, (i) any the number of outstanding Voting Securities shall be determined by the assets, tangible or intangible, of latest available Company filing with the Company or any of its Affiliates or SEC.
(ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangeengage, or in any way participate, directly or indirectly, in any financing for "solicitation" (as such term is defined in Rule 14a-1(l) promulgated by the purchase SEC under the Exchange Act) of two percent proxies or consents (2%) whether or more 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 Voting Securities; initiate, propose or otherwise "solicit" (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) shareholders of the Company for the approval of shareholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; induce or attempt to induce any securities convertible into other Person to initiate any such shareholder proposal; or exchangeable otherwise communicate or exercisable for two percent (2%) or more of any voting securities or assets of seek to communicate with the Company, except for such assets as are then being offered for sale by 's shareholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Company or any of its AffiliatesExchange Act;
(viiii) form, join or in any way participate in any "group" (within the meaning of Rule 13d-5 of Regulation 13D-G under the Exchange Act) with respect to any Voting Securities, other than a "group" that includes all or some lesser number of the Crescendo Parties, but does not include any other members who are not currently identified as a Crescendo Party;
(iv) 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, except as expressly set forth in this Agreement;
(v) otherwise act, alone or in concert with others, to control or seek to propose control or influence or seek to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors the Board or policies of the Company Company, except as otherwise expressly permitted in this Agreement;
(vi) have any discussions or nominate any Person as a director who is not nominated by the then incumbent directorscommunications, or propose enter into any matter to be voted upon by the shareholders arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the Company;foregoing, or make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing; or
(vii) make any proposal (including publicly disclose or discuss any proposal) or enter into any discussion regarding any of the foregoing, or make any proposal, statement or inquiry, or disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing, make any demand to review any of the books and records of the Company, including any list of shareholders, or make or publicly disclose any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; orAgreement;
(viii) take any action that might result in initiative with respect to the Company having or any of its subsidiaries which involves making a public announcement or that could require the Company or any of its subsidiaries to make a public announcement regarding such initiative or any of the matters activities referred to in clauses any of the foregoing subparagraphs (i) through (viiviii);
(ix) of Section 2.3(a), take or announce an intention to do, cause or enter into any arrangement or understanding or discussions with induce others to do, take any action inconsistent with any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing in Notwithstanding the foregoing, Crescendo shall be relieved from compliance with the provisions of Section 2.3(a4(a) will limit hereof to the Shareholder’s ability extent necessary to vote (subject permit it to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected nominate no more than two candidates for election to the Board pursuant as a director to Section 1.1 run as a "short slate" against the Board's slate of nominees for the 2008 Annual Meeting and to solicit proxies in support of such candidate(s) for election to the Board, as well as to request a shareholder list and related information and make any and all filings and/or announcements necessary in the sole discretion of Crescendo, in connection with such nomination, and to vote or otherwise exercise his or her legal duties or otherwise act all Voting Securities that are then beneficially owned by Crescendo in his or her capacity as a member favor of the Boardelection of such candidate or candidates to the Board and in any way the Crescendo Parties see fit with regard to any nominees on the slate nominated by the Board for the 2008 Annual Meeting.
Appears in 1 contract
Samples: Settlement Agreement (Premiere Global Services, Inc.)
Standstill. (a) Until Each Investor agrees that during the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees thatStandstill Period, without the prior written approval of the Company or the Company Board, or as otherwise expressly permitted or contemplated by this Agreement, such Shareholder Investor will not, directly or indirectlynot and will cause its respective controlled Affiliates not to:
3.1.1 acquire beneficial ownership of any securities (iincluding in derivative form) acquireof the Company or make any tender, exchange or other offer for such an acquisition, excluding, in the case of each Investor, acquisition of (a) the Acquired Shares, (b) subject to the prior consent of the Company (which consent shall be deemed to have been granted if the Company does not affirmatively advise the applicable Investor that the Company withholds such consent within one Trading Day after receiving such request for consent, and which consent may only be withheld if the Company reasonably believes such acquisition of Capital Stock or propose other Equity Interests of the Company will be treated as an “ownership change” as defined in Section 382 of the Code), any Capital Stock or other Equity Interests of the Company acquired by the Investor or its controlled Affiliates so long as the total beneficial ownership of the Investor and its controlled Affiliates in the Company’s voting securities, after giving effect to acquiresuch acquisition, solicit an offer to sell would not exceed 25% of the Company’s total voting power at such time and (c) any securities received from the Company by way of dividend or agree to acquire, distribution;
3.1.2 directly or indirectly, alone (i) seek to have called any meeting of the stockholders of the Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board or cause to be voted in concert favor of such person for election to the Board any Shares of Then Outstanding Common Stock;
3.1.3 directly or indirectly, encourage or support a tender, exchange or other offer or proposal by any other Person or group the consummation of which would result in a Change of Control (other than as a seller on the same terms as the other holders of the Company’s Equity Securities) (an “Business Combination”); provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company wherein a majority of the Board recommend that stockholders accept any such Business Combination, the Investors and their Affiliates shall not be prohibited from taking any of the actions otherwise prohibited by this Section 3.1.3 in connection with otherssuch Business Combination for so long as the Board maintains and does not withdraw such recommendation;
3.1.4 directly or indirectly, by purchase solicit proxies or otherwise, two percent (2%) consents or more of any direct or indirect “beneficial ownership” become a participant in a solicitation (as such terms are defined in Rule 13d-3 and Rule 13d-5 Regulation 14A under the Exchange Act) in opposition to the recommendation of Common Shares, a majority of the Company Board with respect to any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquirematter, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, knowingly seek to advise or influence any Person, with respect to voting of any Shares of Then Outstanding Common Stock;
3.1.5 deposit any Shares of Then Outstanding Common Stock in a voting trust or subject any manner whatsoever Shares of Then Outstanding Common Stock to any Person arrangement or agreement with respect to the voting of such Shares of Then Outstanding Common Stock;
3.1.6 propose (a) any voting securities merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, or similar transaction involving the Company or seek to propose to influence(b) any recapitalization, adviserestructuring, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication liquidation or other communications extraordinary transaction with respect to securityholders intended for such purposethe Company;
(iii) except as otherwise expressly provided 3.1.7 act in this Agreementconcert with any third party to take any action in the preceding clauses 3.1.1 through 3.1.6, or form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” within the meaning of Section 13(d)(3) of the Exchange Act Act, other than any actions taken by the Investors related to negotiating, entering into and exercising the rights under this Agreement, the Securities Purchase Agreements or any document entered into in connection with respect to any voting securities of the Company;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliatesforegoing;
(v) arrange3.1.8 enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in any way participate, directly the preceding clauses 3.1.1 through 3.1.7; or
3.1.9 request or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company Board, any member(s) thereof or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies officer of the Company or nominate any Person as a director who is not nominated by that the then incumbent directorsCompany amend, waive, or propose consider the amendment or waiver of, any matter to be voted upon by the shareholders of the Company;
provisions set forth in this Section 3.1 (vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(aincluding this clause 3.1.9); provided, however, that nothing in this clause Section 3.1 shall not prohibit a Shareholder from making a confidential request or proposal to limit (i) the Chief Executive Officer or Chairman ability of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having Investors and their permitted transferees’ ability to make a public announcement regarding any pledge of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote securities (subject to Section 1.2 above2.1), Transfer (subject ii) the rights available (including the enforcement of such rights) to Section 2.4 below)the Investors and their respective Affiliates under this Agreement, convert (subject to Section 7 the Securities Purchase Agreements or any document entered into in connection with any of the Series A Certificateforegoing, or (iii) the Investors or otherwise exercise rights any of its Common Shares their Affiliates or Series A Preference Shares their respective directors, executive officers, partners, principals, employees or managing members or agents (acting in such capacity) from communicating privately with the ability Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Boardsuch communications.
Appears in 1 contract
Samples: Investor Rights Agreement (GTT Communications, Inc.)
Standstill. During the Restricted Period, Anson will not, and will cause the other Restricted Persons not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Until with respect to Company or the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Voting Securities, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act), whether subject to, Act of proxies or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person consents with respect to the voting election or removal of directors or any voting securities other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Company SEC) in any such solicitation of proxies or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
consents; (iii) except as otherwise expressly provided seek to advise, encourage or influence any Person, or assist any Person in this Agreementso encouraging, formadvising or influencing any Person, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the giving or withholding of any voting securities of proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Company;
Board’s recommendation in connection with such matter, if applicable); or (iv) acquireinitiate, offer to acquire encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) “vote no,” “withhold” or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessimilar campaign;
(vib) initiate, propose or otherwise act“solicit” (as such term is used in the proxy rules of the SEC, alone including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) any stockholders of Company for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or in concert Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with others, respect to seek to propose to the Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of its shareholders “proxy access”; or (iii) conduct any amalgamation, merger, business combination, tender nonbinding referendum or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise hold a “stockholder forum”;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to controlnominate or propose the nomination of or recommend the nomination of, any candidate to the Board; or (iii) seek, alone or in concert with others, or encourage any Person to seek, the removal of any member of the Board;
(e) with respect to Company, (i) call or seek to call a special meeting of stockholders, or encourage any Person to call a special meeting of stockholders; (ii) act or seek to act by written consent of stockholders; or (iii) make a request for any stockholder list or other records;
(f) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(g) (i) make any offer or proposal (with or without conditions) with respect to any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or similar extraordinary transaction involving the acquisition by any Third Party (as defined below) of more than 50 percent of Company’s common stock or all or substantially all of Company’s assets (each, an “Extraordinary Transaction”) and any Restricted Person; (ii) solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) comment on any Extraordinary Transaction or proposal regarding any Extraordinary Transaction while the Anson Designee serves on the Board (it being understood that this clause (g) will not restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, encourage, threaten, assist or join, as a party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that this clause (h) will not prevent any Restricted Person from (i) bringing litigation primarily to enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; (v) responding to or complying with a validly issued legal process; or (vi) bringing litigation against any such person in the case of fraud by such person;
(i) take any action in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or influence the management, board term of directors or policies to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company 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 Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the CompanyExchange Act;
(viij) sell, offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(k) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or swap transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of Company’s securities;
(l) other than through non-public communications with Company that would not reasonably be expected to result in or involve public disclosure obligations for any Party, make any request or submit any proposal to amendamend or waive the terms of this Agreement;
(i) compensate or enter into any agreement, waive arrangement or terminate understanding, whether written or oral, to compensate any provision person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities; or (ii) have any other agreement, arrangement or understanding, whether written or oral, with any person related to his or her service as a director of Company, except for customary indemnification obligations to the Anson Designee in their capacity as an employee of a member of the Anson Group as disclosed in writing to Company prior to the date of this Agreement;
(n) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(o) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including a “group” as defined pursuant to Section 2.3(a13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from the underlying securities of Company that would result in the Anson Group beneficially owning, more than 4.9 percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that such member of the Anson Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities); providedor
(p) other than through open market sale transactions where the identity of the purchaser is not known or in underwritten widely dispersed public offerings, sell, offer or agree to sell, through swap or hedging transactions or otherwise, the securities of Company to any Third Party that, to the knowledge of any Anson Signatory (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge will be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial ownership of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial ownership of any Third Party who, together with its Affiliates and Associates, has beneficial ownership of more than 4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause shall (p) will not prohibit apply to any Third Party that is a Shareholder from making Schedule 13G filer and is a confidential request mutual fund, pension fund, index fund or proposal investment fund manager with no known history of activism or known plans to engage in activism). Notwithstanding anything set forth in this Agreement to the Chief Executive Officer or Chairman contrary, nothing in this Agreement will be deemed to prevent any member of the Anson Group from (i) communicating privately with the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, which the Company may accept Company’s chief executive officer or reject in its sole discretionchief financial officer regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require Company or any such request is made in a manner that does not require member of the Anson Group to make public disclosure thereofwith respect thereto; or
(viiiii) take making or sending private communications to investors in any action that might result member of the Anson Group or any of their Affiliates or prospective investors in any member of the Company having to make a public announcement regarding Anson Group or any of their Affiliates, but only if such communications (1) do not circumvent or violate any of the matters referred restrictions set forth in this Agreement; (2) are based only on publicly available information; and (3) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications; (iii) making any statements in clauses response to any oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands, request for information or similar processes in connection with any lawsuit, action, suit, claim, inquiry from a governmental authority or other proceeding before any court that Anson reasonably believes, after consultation with outside counsel, to be legally required by applicable law; (iiv) through (vii) granting any liens or encumbrances on any claims or interests in favor of Section 2.3(aa 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 announce an intention to do(v) negotiating, evaluating and/or trading, directly or enter into indirectly, in any arrangement index fund, exchange traded fund, benchmark fund or understanding or discussions with others to do, any broad basket of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) securities which may contain or otherwise exercise rights reflect the performance of, but not primarily consist of, securities of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the BoardCompany.
Appears in 1 contract
Samples: Agreement (Five9, Inc.)
Standstill. (a) Until During the later of (x) Standstill Period, the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Raging Capital Group, each Shareholder agrees thatMember, each Raging Capital Designee and each of their respective Affiliates shall not, without the prior approval written consent of the Board, such Shareholder will not, directly or indirectlyCompany:
(ia) own, acquire, announce an intention to 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 or otherwise, two percent (2%i) or more Beneficial Ownership of any direct or indirect “beneficial ownership” Common Stock (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Actexcluding (x) 18,888 shares of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities Stock Beneficially Owned by Kxxxxxx X. Xxxxx as of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 date of this Agreement, (y) 18,667 shares of Common Stock Beneficially Owned by Axxxx X. Xxxxx as of the date of this Agreement and (z) shares of Common Stock underlying New Convertible Notes Beneficially Owned by the Raging Capital Group as of the date of this Agreement) or (ii) Beneficial Ownership of any Senior Notes, Convertible Notes, New Convertible Notes or any other interests in the Company’s indebtedness, now in existence or which may be created in the future (excluding $27,500,000 principal amount of Senior Notes and $2,940,000 principal amount of New Convertible Notes Beneficially Owned by the Raging Capital Group as of the date of this Agreement);
(iib) except as otherwise expressly provided in this Agreement, make, or in any way participate inparticipate, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange ActSEC), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person person with respect to the voting of of, any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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 Voting Stock of the Company;
(ivc) acquireseparately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent, submit a recommendation of, suggestion to evaluate or pursue, or any proposal for, offer of, or comment on (with or without conditions) (including to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (ithe Board) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.Extraordinary Transaction. “
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary Each member of the Closing Arbor Group severally, and (y) not jointly, agrees that, for a period of 12 months from the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees thatof this Agreement, without the prior approval written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, such Shareholder he or it will not, directly and will cause each of his or indirectlyits officers, agents and other Persons, including any Affiliates or Associates identified in the Arbor Schedule 13D as members of the "Arbor Group" as therein defined, acting on his or its behalf not to:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrangeengage, or in any way participate, directly or indirectly, in any financing for “solicitation” (as such term is defined in Rule 14a-1(l) promulgated by the purchase SEC under the Securities Exchange Act of two percent 1934, as amended (2%the “Exchange Act”)) of proxies or more consents (whether or not relating to the election or removal of directors); advise, encourage or influence any Person (as herein defined) with respect to the voting of any voting securities Voting Securities with respect to the 2008 Annual Meeting or any other meeting of the Company’s stockholders that occurs prior to the termination of this Agreement in a manner that is inconsistent with the terms of this Agreement; nominate or propose any person for election to the Board; or initiate, propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) stockholders of the Company for the approval of stockholder proposals whether made pursuant to Rule 14a-8 or any securities convertible into Rule 14a-4 or exchangeable or exercisable for two percent (2%exempt solicitations pursuant to Rule 14a-2(b)(1) or more Rule 14a-2(b)(2) under the Exchange Act or otherwise induce or encourage any other Person to initiate any such stockholder proposal; or otherwise communicate with the Company’s stockholders or others pursuant to Rule 14a-1(1)(2)(iv) under the Exchange Act;
(ii) other than in connection with Section 2 hereof, seek or propose, or make any statement 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 that the Arbor Group may seek or assets propose a sale or purchase of the Companyshares of the Company beneficially owned by the Arbor Group as of the date hereof), except for such assets as are then being offered for sale by dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company or any of its Affiliates;
(viiii) otherwise form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than a “group” that includes all or some lesser number of the Persons identified as “Reporting Persons” in the Arbor Schedule 13D, but does not include any other members who are not currently identified as Reporting Persons;
(iv) act, alone or in concert with others, to control or seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence or seek to influence, the management, board of directors Board or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(v) other than as previously disclosed in the Arbor Schedule 13D, 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, except as expressly set forth in this Agreement;
(vi) knowingly enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing, or make any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing;
(vii) make discuss or communicate any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal information with respect to the Chief Executive Officer or Chairman Company and its business, including but not limited to information related to the evaluation of any strategic alternatives under consideration by the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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 thereofBoard; orand
(viii) take or cause or induce others to take any action that might result in the Company having to make a public announcement regarding inconsistent with any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)foregoing.
(b) Nothing The Arbor Group hereby waives any right (whether by statute or agreement) to inspect records and lists of Company stockholders (including any list of non-objecting beneficial owners) in Section 2.3(a) will limit connection with the Shareholder’s ability to vote (subject to Section 1.2 above)2008 Annual Meeting, Transfer (subject to Section 2.4 below), convert (subject to Section 7 of including the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board Arbor has pursuant to Section 1.1 that certain agreement dated March 12, 2008, between Arbor and the Company, that requires the Company to vote produce or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Boardprovide access to certain stockholder records.
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary Except as otherwise specifically provided in Section 1, each member of the Closing Stockholder Group will not, and will cause each of its Affiliates (y) as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), as in effect on the date on which no nominee designated by hereof) not to, during the Majority Approved Holders serves period commencing on the Board date hereof and ending on January 15, 2004 (the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right"STANDSTILL TERMINATION DATE"), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:, without the written consent of the Company (which may be withheld or delayed by the Company at its sole discretion):
(i) acquire, announce an intention to 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 or otherwise, two percent beneficial ownership (2%) or more within the meaning of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of of: (A) any Common Shares, any securities convertible or exchangeable into Common Shares Stock or direct or indirect rights, warrants or rights to options to acquireacquire (through purchase, exchange, conversion or otherwise) any Common Stock; or (B) any other Voting Securities, or securities convertible into direct or exchangeable forindirect rights to options to acquire (through purchase, two percent exchange, conversion or otherwise) any other Voting Securities; PROVIDED, HOWEVER, that clauses (2%A) and (B) shall not include Common Stock or more other Voting Securities received as a result of a stock dividend, stock distribution or stock split or through the exercise of any voting securities rights under any Company rights offering or shareholder rights plan; PROVIDED, FURTHER, HOWEVER, that clause (i) shall not prohibit any open-market purchase of Common Stock only if, after giving effect to any such purchase, the Stockholder Group does not beneficially own in excess of 15% of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this AgreementStock;
(ii) except as otherwise expressly provided in this Agreement, make, solicit proxies (or written consents) or assist or participate in any way participate inother way, directly or indirectly, alone in any solicitation of proxies (or written consents), or otherwise become a "participant" in concert with others, any “a "solicitation” of “proxies” to vote " (as such terms are used defined in the proxy rules Instruction 3 of the SEC promulgated pursuant to Section 14 Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act), whether subject to) in opposition to the recommendation or proposal of the Board, or exempt from the federal proxy rulesrecommend or request or induce or attempt to induce any other individual or entity (each, a "PERSON") to take any such actions, or seek to advise advise, encourage or influence in any manner whatsoever any Person other person with respect to the voting of (or the execution of a written consent in respect of) the Common Stock or other Voting Securities, or execute any voting securities written consent in lieu of a meeting of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy holders of the Company by way of any public communication Common Stock or other communications Voting Securities or grant a proxy with respect to securityholders intended for such purposethe voting of the Common Stock or other Voting Securities to any person other than to the Board or persons appointed as proxies by the Board;
(iii) except as otherwise expressly provided in this Agreementinitiate, propose or submit one or more stockholder proposals or induce or attempt to induce any other person to initiate any stockholder proposal;
(iv) call or request, seek to call or request the call of, a special meeting of the Company's stockholders, or make a request for a list of the Company's stockholders;
(v) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company;
(ivAct) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase purpose of two percent (2%) acquiring holding, voting or more disposing of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of other than the Company, except for such assets as are then being offered for sale by the Company or any of its AffiliatesStockholder Group;
(vi) 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 of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with supported by the Company or otherwise Board;
(vii) seek, alone or in concert with others, to controlplace 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;
(viii) deposit any Common Stock or other Voting Securities in a voting trust or enter into any other arrangement or agreement with respect to the voting thereof; PROVIDED, change HOWEVER, that the foregoing shall not prohibit Broken Arrow's investment committee from taking any action that is not otherwise inconsistent with this Agreement;
(ix) acquire or influence agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the management, board of directors assets or policies business of the Company or nominate any Person as a director who is not nominated by the then incumbent directorsrights or options to acquire any such assets or business from any person;
(x) seek, propose, or propose make any matter statement with respect to, or solicit, negotiate with, or provide any information to be voted upon by 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, recapitalization, dividend, share repurchase or similar transaction involving the shareholders Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viiixi) take any action, alone or in concert with any other person, advise, finance, assist or participate in or encourage any person to take any action that might result in the Company having which is prohibited to make a public announcement regarding be taken by any Investor or any of the matters referred its affiliates or associates pursuant to in clauses (i) through (vii) of Section 2.3(a)this Agreement, or announce an intention to do, make any investment in or enter into any arrangement with, any other person that engages, or understanding offers or discussions with others proposes to do, engage in any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).foregoing;
(bxii) Nothing 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
(xiii) take any action challenging the validity or enforceability of any provisions of this Section 2.3(a2.2; PROVIDED, HOWEVER, that the foregoing shall not prohibit: (x) will limit the Shareholder’s ability to vote Offeror (subject to Section 1.2 above), Transfer (subject to Section 2.4 as defined below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected from presenting to the Board pursuant Qualified Proposals (as defined below); or (y) the Offeror from conducting non-hostile discussions with officers of and advisors to Section 1.1 the Company that are incidental to vote the development of any Qualified Proposal. The Company shall cause any such Qualified Proposals to be presented to the Board (or otherwise exercise his a committee thereof) and shall permit any such discussions to occur, but nothing in this Agreement shall impose upon the Board or her legal duties the Company any obligation to act (or otherwise act in his or her capacity not to act) other than as a member of the Boardrequired by applicable Delaware law.
Appears in 1 contract
Standstill. (a) Until 11.1 From and after the later date hereof until the earlier of (x) the three (3)-year two year anniversary of the Closing Date and (y) such time as the date on which no nominee designated by Stockholder, Newco 3, Newco 2A and its Affiliates have, continuously for a 6-month period, been the Majority Approved Holders serves on Beneficial Owners, in the Board and aggregate, of less than 2% of the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)outstanding Parent Common Stock, each Shareholder agrees that, without the prior approval of the BoardStockholder, such Shareholder will Newco 3 and Newco 2A shall not, and shall direct and cause its Representatives and any other Person to the extent acting on behalf of, or in concert with, it or any of its Affiliates, not to, directly or indirectly:, absent the prior written consent of Parent, do any of the following (or facilitate or encourage any other Person to do any of the following):
(i) acquire(A) engage in any “solicitation” (as such term is used in the proxy rules of the SEC, offer but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)), with respect to Parent or propose any Parent Securities, of proxies or consents or conduct any non-binding referendum with respect to acquirethe election or removal of directors or any other matter or proposal to be voted on by holders of Parent Securities, solicit an offer (B) make any public statement in support of any third-party solicitation with respect to sell Parent or agree Parent Securities or (C) become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents with respect to acquireParent or Parent Securities;
(ii) knowingly encourage, advise or influence any other Person, or knowingly assist any other Person in so encouraging, advising or influencing any other Person, with respect to the voting or the giving or withholding of any proxy, consent or other authority to vote involving Parent or Parent Securities, including any binding or non-binding referendum;
(iii) form, join or participate in any way in any “group” as defined pursuant to Section 13(d) of the Exchange Act (other than any “group” consisting solely of the Stockholder and its Affiliates), with respect to any Parent Securities;
(iv) make, or in any way knowingly participate with any other Person, directly or indirectly, in any offer or proposal that would reasonably be expected to result in any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or similar transaction involving Parent or its securities or assets;
(v) (A) seek or propose, alone or in concert with others, by purchase election or otherwiseappointment to, two percent (2%) or more representation on, the board of any direct directors of Parent or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under nominate or propose the Exchange Act) of Common Sharesnomination of, or recommend the nomination of, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options candidate to acquire, or securities convertible into or exchangeable for, two percent the board of directors of Parent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions except as expressly contemplated by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Merger Agreement), including pursuant to Section 2.1 of this Agreement;
(iiB) except as otherwise expressly provided in this Agreement, make, seek or in any way participate in, directly or indirectlypropose, alone or in concert with others, the removal of any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules member of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy directors of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwiseParent, (iC) any of the assets, tangible seek or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise actpropose, alone or in concert with others, to call a meeting of the stockholders of Parent, (D) seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seekpropose, alone or in concert with others, to control, change or influence control the management, board of directors or management policies of Parent; (E) make or be the Company proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or nominate otherwise) for consideration by Parent’s stockholders, (F) enter into any Person as a director who is not nominated by the then incumbent directorsVoting Agreement or subject any Parent Securities to any Voting Agreement, or propose (G) make any matter demand or request for stock list materials or other books and records of Parent under any applicable statutory or regulatory provisions providing for stockholder access to be voted upon by the shareholders books and records (including all rights under Section 220 of the CompanyDGCL);
(vi) initiate, knowingly encourage or participate in any “vote no,” “withhold” or similar campaign as it relates to Parent; or
(vii) commence, encourage or support any derivative action in the name of Parent, or any class action against Parent or any of its officers or directors in order to, directly or indirectly, effect any of the actions expressly prohibited by this Section 11;
(viii) make any request or submit any proposal (including to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to amend the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions terms of this Section 2.3, which the Company 11) that may accept reasonably be expected to result in or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereofby any Party regarding any of the types of matters set forth in this Section 11; or
(viiiix) take publicly disclose any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a)intention, plan or announce an intention to doarrangement, or enter into any arrangement negotiations, agreements or understanding understandings with any third party, to take any action, inconsistent with any provisions of this Section 11.
11.2 The provisions set forth in Section 11.1 shall not limit the actions of any director on the board of directors of Parent solely in such director’s capacity as a director of the board of directors of Parent, recognizing that such actions are subject to such director’s fiduciary duties to Parent and its stockholders.
11.3 For the avoidance of doubt, and notwithstanding anything herein to the contrary, nothing in this Section 11 or discussions elsewhere in this Agreement shall be deemed to in any way restrict, limit or prevent (a) each of the Stockholder or its Affiliates from making any non-public communications with others to doits attorneys, accountants, or other advisors, as well as with any of its lenders who are subject to customary confidentiality restrictions prohibiting further disclosure of non-public and confidential information; (b) except as stated in Section 12 hereof, following the actions restricted Closing Date, the Stockholder or prohibited under clauses its Affiliates from selling, offering to sell, or tendering any Parent Common Stock; (c) establishing and placing Parent Common Stock or other securities in customary brokerage accounts, margin accounts, prime brokerage accounts and the like; (d) the Stockholder or its Affiliates from (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit enforcing the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 provisions of the Series A CertificateMerger Agreement or this Agreement or (ii) making counterclaims with respect to any proceeding initiated by, or otherwise exercise rights of its Common Shares on behalf of, Parent against the Stockholder with respect to the Merger Agreement or Series A Preference Shares this Agreement or (e) the ability of the Shareholders’ director designee elected parties to the Board pursuant Merger Agreement to comply with Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member 5.6 of the BoardMerger Agreement.
Appears in 1 contract
Samples: Voting and Support Agreement (Tempur Sealy International, Inc.)
Standstill. (a) Until The Investor Parties agree that until the later of (xi) 90 days after the three (3)-year anniversary of the Closing and (y) the date first day on which no nominee designated by the Majority Approved Holders Investor Designee serves on the Board and the Shareholders are Investor has no longer entitled to designate any directors for nomination pursuant to Section 1.1 rights (or have has irrevocably waived their its right) under Section 5.10 (except for Section 5.10(f), each Shareholder agrees that) and (ii) the expiration of the Lock-Up Period (the “Standstill Expiration Date”), without the prior written approval of the Board, such Shareholder the Investor Parties will not, directly or indirectly, and will cause their Affiliates not to:
(ia) acquire, offer or propose seek to acquire, solicit an offer to sell or agree to acquire or make a proposal to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any equity securities convertible or exchangeable into Common Shares or direct or indirect rightsrights to acquire any equity securities of the Company, warrants or options to acquire, or any securities convertible into or exchangeable forfor any such equity securities, two percent any options or other derivative securities or contracts or instruments in any way related to the price of shares of Common Stock (2%) solely to the extent that, after giving effect to such acquisition, the Investor Parties and their Affiliates would beneficially own, in the aggregate, greater than 15% of the then outstanding Common Stock (which calculation shall, for the avoidance of doubt, include the notional or more other number of shares of Common Stock specified in the documentation for any Contract to which any of the Investor Parties are party which is designed to produce economic benefits and risks to any of the Investor Parties that correspond substantially to the ownership by the Investor Parties of shares of Common Stock, except in the case of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined such Contract which is settled only in the Investment Agreementcash), including pursuant to Section 2.1 of this Agreement);
(iib) except as otherwise expressly provided in this Agreement, make, make or in any way encourage or participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” (whether or not relating to vote (the election or removal of directors), as such terms are used in the proxy rules of the SEC promulgated pursuant SEC, to Section 14 of the Exchange Act), whether subject tovote, or exempt from the federal proxy rules, knowingly seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influenceof, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into of its Subsidiaries, or exchangeable call or exercisable seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal for two percent (2%) action by the Company’s stockholders, or more seek election to or to place a representative on the Board or seek the removal of any voting director from the Board;
(c) make 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 more than 50% of the assets, properties or securities of the Company or assets any Subsidiary of the Company, except for such assets as are then being offered for sale by or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of its Affiliatestheir 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;
(vid) otherwise act, alone or in concert with others, to seek to propose to the Company control or influence, in any of its shareholders any amalgamationmanner, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any of its Subsidiaries;
(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 as a director who is not nominated by the then incumbent directorsto do, or propose to advise, assist, knowingly encourage or direct any matter other Person to be voted upon by do, any of the shareholders foregoing;
(g) take any action that would require the Company to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 5.07;
(h) enter into any agreements, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, any Investor Parties) with respect to any of the foregoing, including 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 in connection with any of the foregoing;
(viii) make request the Company or any request of its Representatives, directly or proposal indirectly, to amend, amend or waive or terminate any provision of this Section 2.3(a)5.07; provided, provided that this clause shall not prohibit a Shareholder the Investor Parties from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.35.07, 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 thereofthereof by any Person; or
(viiij) contest the validity of this Section 5.07 or make, initiate, take or participate in any action demand, Action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 5.07; provided, however, that might result nothing in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of this Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) 5.07 will limit (1) the Shareholder’s Investor Parties’ ability to vote (subject to Section 1.2 above5.11), Transfer or Hedge (subject to Section 2.4 below5.08), convert shares of Series A Preferred Stock into Common Stock (subject to Section 7 6 of the Certificate of Designations), limit or restrict any transfer pursuant to a Permitted Loan or any foreclosure thereunder or transfer in lieu of a foreclosure thereunder, 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 the Investor Parties, tender shares of Common Stock or Series A Certificate) Preferred Stock into any tender or exchange offer (subject to Section 5.08), effect an adjustment to the Conversion Rate pursuant to the Certificate of Designations or otherwise exercise rights of under its Common Shares Stock or Series A Preference Shares Preferred Stock that are not the subject of this Section 5.07 or (2) the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 Investor Director to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. During the Restricted Period, the Palogic Signatories will not, and will cause the other Restricted Persons (other than any agents and representatives not acting on behalf of any member of the Palogic Group) not to, in any way, directly or indirectly (in each case, except as expressly permitted by this Agreement):
(a) Until with respect to Company or the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right)Voting Securities, each Shareholder agrees that, without the prior approval of the Board, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, participate in or in any way participate in, directly or indirectly, alone or in concert with others, encourage any “solicitation” of “proxies” to vote (as such terms are term is used in the proxy rules of the SEC promulgated pursuant to Section 14 (as defined below), including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”), whether subject to, ) of proxies or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person consents with respect to the voting election or removal of directors in any voting securities manner or any other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the Company SEC) in any such solicitation of proxies or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
consents; (iii) except as otherwise expressly provided seek to advise, encourage or influence any Person, or assist any Person in this Agreementso encouraging, formadvising or influencing any Person, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the giving or withholding of any voting securities of proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Company;
Board’s recommendation in connection with such matter, if applicable); or (iv) acquireinitiate, offer to acquire encourage or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) “vote no,” “withhold” or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliatessimilar campaign;
(vib) initiate, propose or otherwise act“solicit” (as such term is used in the proxy rules of the SEC, alone including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) Company’s stockholders for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or in concert Rule 14a-8 promulgated under the Exchange Act, or otherwise, or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with others, respect to seek to propose to the Company or the Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of its shareholders “proxy access”; or (iii) conduct any amalgamation, merger, business combination, tender nonbinding referendum or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise hold a “stockholder forum”;
(d) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to controlnominate or propose the nomination of or recommend the nomination of, change or influence any candidate to the management, board Board (other than informal recommendations of directors or policies qualified individuals if such recommendations are solicited from members of the Company Board generally); or nominate (iii) seek, alone or in concert with others, or encourage any Person as to seek, the removal of any member of the Board;
(e) (i) call or seek to call a director who is not nominated by the then incumbent directorsspecial meeting of Company’s stockholders, or propose encourage any matter Person to be voted upon call a special meeting of Company’s stockholders; (ii) act or seek to act by the shareholders written consent of the stockholders; or (iii) make a request for any stockholder list or other records of Company;
(viif) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(g) (i) make any request offer or proposal (with or without conditions) with respect to amendany tender offer, waive exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or terminate similar extraordinary transaction involving Company, any provision of Section 2.3(a)its subsidiaries or any of their respective securities or assets (each, an “Extraordinary Transaction”) and any Restricted Person; provided(ii) knowingly solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) prior to Company announcing an Extraordinary Transaction, publicly or privately comment to any Third Party on any proposal regarding any Extraordinary Transaction (it being understood that this clause shall (g) will not prohibit restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) institute, solicit, assist or join, as a Shareholder party, any litigation, arbitration or other proceeding against or involving Company or any of its respective current or former directors or officers (including derivative actions), except that this clause (h) will not prevent any Restricted Person from making a confidential request or proposal (i) bringing litigation to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or (v) responding to or complying with a validly issued legal process;
(i) take any action in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company 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 Company to become eligible for termination of registration pursuant to Section 2.312(g)(4) of the Exchange Act; provided that, without limiting the application of paragraph 4 to any other provision, this clause (i) shall not apply to recommendations of the New Director, in his capacity as a director of Company, in confidential Board discussions;
(j) sell, offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(k) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or swap transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of Company;
(l) enter into any stock borrowing, stock pledging or stock lending arrangement or agreement with respect to securities of Company;
(m) other than through non-public communications with Company that would not reasonably be expected to trigger public disclosure obligations for any Party, make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board, Company or its management, policies, affairs or assets, or the Voting Securities or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or that would require, the waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that would reasonably be expected to require Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(n) enter into any economic relationship with any Person in respect of Company, or compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company (other than pursuant to ordinary course compensation arrangements related to the New Director’s service as an employee, member or partner of any member of the Palogic Group, which arrangements may include a share of performance fees or carried interest tied to the performance of a portfolio inclusive of Company may accept securities) with any cash, securities (including any rights or reject options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to the performance of the securities of Company (it being understood that, notwithstanding anything to the contrary in its sole discretionthis Agreement and notwithstanding any termination of this Agreement, the restrictions on the Palogic Signatories and the other Restricted Persons contemplated by this clause (n) will be operative so long as the New Director is serving on the Board);
(o) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(p) acquire, offer, agree or propose to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person or through swap or hedging transactions, any securities of Company or any rights decoupled from the underlying securities of Company that would, in any case, result in the Palogic Group in the aggregate owning, controlling or otherwise having any beneficial or other ownership interest of any additional Voting Securities (including, for purpose of this calculation, all Voting Securities that a member of the Palogic Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such request is made rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the price of Voting Securities) in excess of 9.5% of the outstanding Voting Securities, it being understood that the following will not be deemed to cause a manner that does not require public disclosure thereofviolation of this clause (p): (i) the receipt by the New Director from Company of any ordinary course compensation in the form of Voting Securities (or securities exercisable for Voting Securities); and (ii) the pro rata acquisition of securities of Company or any rights decoupled from the underlying securities of Company pursuant to any stock splits, stock dividends, reclassifications, recapitalizations, combinations or rights issuances (including the pro rata acquisition of securities upon the exercise of such rights) in respect of securities of Company beneficially owned by the Palogic Group in compliance with this Agreement; or
(viiiq) take sell, offer or agree to sell, through swap or hedging transactions or otherwise, any action securities of Company to any Third Party that might would knowingly result in the Company such Third Party, together with its Affiliates, owning, controlling or otherwise having to make a public announcement regarding any beneficial or other ownership interest of more than 4.99 percent of the matters referred then-outstanding Voting Securities (it being understood that the restrictions in this clause (q) will not apply to any Third Party that is a Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of activism or known plans to engage in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(aactivism).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Standstill. (a) Until the later of If (x) this Agreement is terminated by either Parent or the three Company in accordance with the terms of Section 9.1(i), (3)-year anniversary of the Closing and iii) or (iv), (y) such termination was not related to the date on which no nominee designated material breach by the Majority Approved Holders serves on Company of any of its representations, warranties, covenants or agreements set forth herein, and (z) Merger Subsidiary fails to exercise the Board and Option (defined in the Shareholders are no longer entitled Stockholder Option Agreement) prior to designate the expiration thereof, neither Parent, Merger Subsidiary nor any directors subsidiary of either of them shall for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval a period of the Board, two years following such Shareholder will not, directly or indirectly:
expiration (i) acquire, offer or propose to acquire, solicit an offer to sell acquire or agree to acquire, acquire directly or indirectly, alone or in concert with others, indirectly by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of otherwise any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, make or in any way participate in, directly or indirectly, alone or in concert with others, any “"solicitation” " of “"proxies” " to vote (as in such terms are as used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, SEC) or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person person or entity with respect to the voting of any voting securities of the Company or seek to propose to influenceCompany, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “"group” " within the meaning of Section 13(d)(313(d)(iv) of the Exchange Act with respect to any voting securities of the Company;
Company or (iv) acquire, offer to acquire or agree to acquire, directly or indirectly, otherwise act alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, others to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change control or influence the management, board Board of directors Directors, or policies of the Company Company. Notwithstanding anything to the contrary set forth herein, as of the date of this Agreement, Section 9 of the Confidentiality Agreement is hereby terminated and of no further force or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter effect. The parties hereto have caused this Agreement to be voted upon duly executed by the shareholders their respective authorized officers as of the Company;
(vii) make day and year first above written. SHERIDAN ENERGY, INC. By: -------------------------------------------- Name: Title: CALPINE CORPORATION By: -------------------------------------------- Name: Title: CPN SHERIDAN, INC. By: -------------------------------------------- Name: Title: ANNEX I Notwithstanding any request or proposal to amend, waive or terminate any other provision of Section 2.3(a); providedthe Offer, that this clause Parent and Merger Subsidiary shall not prohibit a Shareholder from making a confidential request be required to accept for payment or proposal (subject to the Chief Executive Officer or Chairman any applicable rules and regulations of the Board SEC, including Rule 14e-1(c) under the Exchange Act (relating to Merger Subsidiary's obligation to pay for or return tendered Shares after the termination or withdrawal of the Company seeking an amendment or waiver of Offer)) to pay for any Shares, and may terminate the provisions of this Section 2.3Offer, 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; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses if (i) through (vii) by the expiration of Section 2.3(a)the Offer, the Minimum Condition shall not have been satisfied, or announce an intention (ii) at any time on or after August 25, 1999 and prior to do, or enter into any arrangement or understanding or discussions with others the acceptance for payment of Shares pursuant to dothe Offer, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.following conditions exist:
Appears in 1 contract
Standstill. (a) Until You hereby represent to the later of (x) the three (3)-year anniversary Company that, as of the Closing and (y) date hereof, except as set forth in reports filed prior to the date on which no nominee designated by hereof with the Majority Approved Holders serves on the Board U.S. Securities and the Shareholders are no longer entitled Exchange Commission, neither you nor, to designate your knowledge, any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval of your present Representatives as of the Boarddate hereof, such Shareholder will not, directly or indirectly:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “has beneficial ownership” ownership (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of the Company or any of its Affiliates subsidiaries. In consideration for your being permitted to share Proprietary Information with certain persons, you agree that, unless requested in writing in advance by the Special Committee’s Representatives (for so long as the Special Committee is in existence and the Company’s Representatives acting at the direction of the independent and disinterested members of the Board of Directors after the Special Committee has been disbanded), neither you nor your Representatives will, at any time during the twelve month period commencing on the date hereof (or, at any time during such period, assist, advise, act in concert or participate with or knowingly encourage others to), directly or through others (iiincluding, without limitation, in your capacity as a trustee): (a) direct acquire (or indirect rightsagree, warrants offer, seek or options propose to acquire acquire, in each case, publicly or privately), by purchase, tender offer, exchange offer, agreement or business combination or in any other manner, any ownership, including, but not limited to, beneficial ownership, as defined in Rule 13d-3 under the Exchange Act, of any material assets or businesses or any securities of the Company or any direct or indirect subsidiary thereof, or any rights or options to acquire such ownership (including, without limitation, from any third party) (provided that this clause (a) shall not prohibit (i) any of its Affiliatesyou from gifting or otherwise transferring to another signatory hereto, shares of common stock held by you (provided that you give the Company written notice of the details of any such gift or transfer no later than three days after it is made) or from acquiring shares of stock pursuant to distributions to shareholders of the Company by the Company, (ii) Xxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxxx from being awarded or receiving any grants of equity awards or equity securities of the Company upon vesting or exercise of such awards pursuant to their roles as members of the Company’s management and/or the Company’s board of directors); (iii) any of you or any of your parents, step-parents, spouses, aunts, uncles, children, nephews, nieces, cousins, or other blood relatives, and any trusts for which you now or in the future serve in any administrative or trust capacity (collectively, the “Family Owners,” and each individually, a “Family Owner”) or for which any Family Owner is a trustee or beneficiary, from making or receiving bona fide gifts or transfers of any equity securities of the Company from any other Family Owner, (iv) any transfer or acquisition of rights or beneficial ownership in respect of any equity securities of the Company made in respect of bona fide estate planning, resulting from or to give effect to, any estate plans; or (v) acting in any fiduciary role with respect to any Family Owner(s), or trust for the benefit of such Family Owner(s), including, but not limited to, executor, trustee, attorney-in-fact, agent, and/or custodian, and taking all any and all actions required thereby; (b) publicly or privately offer to enter into, or publicly or privately propose (except for such assets in your capacity as are then being offered for sale an officer of the Company where the Company is acting as an acquiror, in each case only if expressly invited to do so by the Special Committee), any merger, business combination, recapitalization, restructuring or other extraordinary transaction with the Company or any direct or indirect subsidiary thereof; (c) unless (i) the Board of its Affiliates;
Directors or the Special Committee adversely alters the status, duties and terms of employment (vother than changes to compensation in the ordinary course of business by the Compensation Committee of the Board) arrangein a material respect or expressly threatens the employment status of Xxxx X. Xxxxxxxxx or Xxxxx X. Xxxxxxxxx or requests either of their resignations as an officer, employee or director of the Company, or (ii) the Board of Directors or any committee thereof proposes to seek the resignation of Xxxx Xxxxxxxxx or Xxxxx Xxxxxxxxx from the Board of Directors or communicates an intent not to nominate them for re-election as members of the Board of Directors, (A) initiate any stockholder proposal, or except in any way participate, directly your capacity as a director or indirectlyofficer of, in each case only if expressly directed to do so by the Company’s board of directors, the Company with respect to any financing for annual or special meeting called by the purchase Board of two percent Directors, the convening of a stockholders’ meeting of or involving the Company or any direct or indirect subsidiary thereof; or (2%B) solicit proxies (as such terms are defined in Rule 14a-1 under the Exchange Act), whether or more not such solicitation is exempt pursuant to Rule 14a-2 under the Exchange Act, with respect to any matter, except in your capacity as an officer or director of the Company, in each case only if expressly directed to do so by the Company’s board of directors, otherwise seek to influence, advise or direct the vote of, holders of any voting securities shares of capital stock of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%in each case, whether currently or upon the occurrence of any contingency) such capital stock, or make any communication exempted from the definition of solicitation by Rule 14a-1(l)(2)(iv) under the Exchange Act; (d) other than discussions, negotiations, agreements, arrangements or understandings among yourselves and your Representatives with respect to the Possible Transaction in compliance with this Agreement, enter into any discussions, negotiations, agreements, arrangements or understandings with any other person with respect to any matter described in the foregoing clauses (a) through (c) or more form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) to vote, acquire or dispose of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
subsidiaries; or (vie) other than as expressly permitted by this Agreement (x) make any public disclosure, or (y) take any action that could reasonably be expected to require you or the Company to make a public disclosure, with respect to any of the matters set forth in this Agreement. Notwithstanding anything in this Paragraph 7 to the contrary, you may (1) unless otherwise actrequested by the Special Committee, alone or in concert enter into discussions with othersthe Special Committee and its Representatives to explore a Possible Transaction, to seek to propose and (2) make requests (but only privately to the Company and not publicly) for amendments, waivers, consents under or agreements not to enforce clauses (a) through (c) of this Paragraph 7 and may make proposals or offers (but only privately to the Company not publicly) regarding the transactions contemplated by clauses (a) through (c) of this Paragraph 7, in each case under this clause (2), at any time after a Fundamental Change Event (as defined below). A “Fundamental Change Event” means the Company has after the date of this Agreement entered into a definitive written agreement providing for (i) any acquisition of 30% or more of the voting securities of the Company by any person or group, (ii) any acquisition of a majority of the consolidated assets of the Company and its shareholders subsidiaries by any amalgamationperson or group, merger, business combination, or (iii) any tender or exchange offer, merger or other business combination or any recapitalization, restructuring, recapitalizationliquidation, liquidation of dissolution or other extraordinary transaction to (provided that, in the case of any transaction covered by the foregoing clause (iii), immediately following such transaction, any person, other than you or with your controlled affiliates (or the Company direct or otherwise seekindirect shareholders of such person), alone or in concert with others, to control, change or influence will beneficially own a majority of the management, board of directors or policies outstanding voting power of the Company or nominate any Person as the surviving parent entity in such transaction). For purposes of this Paragraph 7, the following will be deemed to be an acquisition of beneficial ownership of securities: (1) establishing or increasing a director who is not nominated by the then incumbent directorscall equivalent position, or propose any matter liquidating or decreasing a put equivalent position, with respect to be voted upon by such securities within the shareholders meaning of Section 16 of the Company;
Exchange Act; or (vii2) make entering into any request swap or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, other arrangement that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, 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; or
(viii) take any action that might result results in the Company having to make a public announcement regarding acquisition of any of the matters referred economic consequences of ownership of such securities, whether such transaction is to be settled by delivery of such securities, in clauses (i) through (vii) cash or otherwise. For purposes of Section 2.3(a)this Paragraph 7, any acquisition of beneficial ownership of securities shall not include an acquisition pursuant to any stock split, reverse stock split, recapitalization, reclassification of shares, or announce an intention to dosimilar transaction, or enter into any arrangement or understanding or discussions with others to do, any of in each case undertaken by the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)Company.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Nondisclosure Confidentiality Agreement (Nordstrom Inc)
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled Subject to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their rightSection 4.03(b), each Shareholder the Purchaser agrees that, without during the prior approval Standstill Period, it shall not, and shall cause each of its Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (collectively and individually, the Board, such Shareholder will not“Purchaser Affiliates”) not to, directly or indirectly, absent prior express written invitation or authorization by the Board of Directors, in each case with respect to the Company:
(i) 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 or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownershipsolicitation” (as such term is defined under the Securities Exchange Act of 1934 (as amended)) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such term is defined in Rule 13d-3 and Rule 13d-5 Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of Common Shares, any securities convertible proxies or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreementconsents;
(ii) except as otherwise expressly provided in this Agreementknowingly encourage, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence any other person or knowingly assist any person in so encouraging, advising or influencing any manner whatsoever any Person person with respect to the voting giving or withholding of any voting securities of the Company or seek to propose to influenceproxy, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication consent or other communications authority to securityholders intended for vote any Voting Stock or in conducting any type of referendum, binding or non-binding, of holders of Voting Stock (other than any such purposeencouragement, advice or influence that is (x) consistent with Company management’s recommendation in connection with such matter or (y) that is directed at any Purchaser Affiliate with respect to Voting Stock now or hereafter owned by such Purchaser Affiliate);
(iii) except as otherwise expressly provided in this Agreement, form, join or act in concert with any way participate in partnership, limited partnership, syndicate or other group, including a “group” within the meaning of as defined pursuant to Section 13(d)(313(d) of the Exchange Act Act, with respect to any voting securities of the CompanyVoting Stock, other than solely with other Purchaser Affiliates with respect to Voting Stock now or hereafter owned by them;
(iv) 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 of third party in the assetsacquisition of, tangible any Voting Stock, or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants rights or options to acquire any assets Voting Stock if such acquisition would result in the Purchaser and its Affiliates having Beneficial Ownership of more than 20% of the outstanding Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its AffiliatesCommon Stock;
(v) arrange, make or in any way participate, directly or indirectly, in any financing for the purchase tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of two percent (2%) a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by extraordinary transaction involving the Company or any of its Affiliates;
subsidiaries or its or their securities or assets (vieach, an “Extraordinary Transaction”) otherwise act(it being understood that the foregoing shall not restrict the Purchaser Affiliates from participating on the same basis as other stockholders of the Company in any such transaction that has been approved by the Board of Directors); or make, directly or indirectly, any proposal, either alone or in concert with others, to seek to propose to the Company or the Board of Directors that would reasonably be expected to require a public announcement regarding any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation the types of or other transaction to or with the Company or otherwise matters set forth above in this paragraph;
(vi) (A) seek, alone or in concert with others, election or appointment to, or representation on, the Board of Directors or nominate or propose the nomination of, or recommend the nomination of, any candidate to controlthe Board of Directors, change except as set forth in this Agreement, (B) seek, alone or influence in concert with others, the management, board removal of directors or policies any member of the Company Board of Directors other than the Purchaser Designee or nominate any Person as (C) conduct a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders referendum of stockholders of the Company;
(vii) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(viii) make any request for stock list materials or other books and records of the Company under Section 220 of the DGCL or other statutory or regulatory provisions providing for shareholder access to books and records;
(ix) make any public proposal with respect to amend(A) any change in the number or term of directors or the filling of any vacancies on the Board of Directors (except as contemplated in Section 4.07), waive (B) any material change in the capitalization of the Company, (C) any other material change in the Company’s management, business or terminate corporate structure, (D) any provision waiver, amendment or modification to the Company’s certificate of incorporation or bylaws, or other actions which may impede 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 equity securities of the Company to become eligible for termination of registration pursuant to Section 2.3(a)12(g)(4) of the Exchange Act;
(x) 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; provided, however, that this clause for the avoidance of doubt the foregoing shall not prohibit a Shareholder prevent any Purchaser Affiliate from making a confidential request or proposal (A) bringing litigation to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of enforce the provisions of this Section 2.3Agreement, which (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company may accept or reject any other Person against a Purchaser Affiliate, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or the topics covered in its sole discretionthe correspondence between the Company and the Purchaser Affiliates prior to the date hereof, so long as or (D) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent the Purchaser Affiliates from responding to or complying with a validly issued legal process;
(xi) enter into any such request is made in a manner negotiations, agreements or understandings with any Third Party to take any action that does not require public disclosure thereofthe Purchaser Affiliates are prohibited from taking pursuant to this Section 4.03; or
(viiixii) take make any action that might request or submit any proposal, directly or indirectly, 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 (i) through (vii) of Section 2.3(a), such request or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)proposal.
(b) The restrictions in Section 4.03(a) shall terminate automatically upon the earliest of (i) the announcement by the Company of a definitive agreement with respect to any Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of 50% or more of the outstanding Company Common Stock, 50% or more of the voting power of the outstanding Voting Stock or all or substantially all of the Company’s assets and (ii) the commencement of any tender or exchange offer (by a person other than the Purchaser or its Affiliates), which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of 50% or more of the outstanding Company Common Stock or 50% or more of the voting power of the outstanding Voting Stock, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer.
(c) Nothing in Section 2.3(athis Section 4.03 shall (i) will limit prevent any Purchaser Affiliate from making (x) any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Shareholder’s ability Company or a Third Party (and nothing in this Agreement shall prevent the Company from responding to vote (subject to Section 1.2 abovesuch statements), Transfer (subject y) any factual statement as required by applicable legal process, subpoena, or legal requirement or as part of a response to Section 2.4 below), convert a request for information from any governmental authority with jurisdiction over the party from whom information is sought (subject to Section 7 so long as such request did not arise as a result of discretionary acts by the Series A CertificatePurchaser or any of its Affiliates) or otherwise exercise rights of its Common Shares (z) any confidential oral communication or Series A Preference Shares proposal to management or the ability Board of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote Directors, (ii) prohibit or otherwise exercise restrict any Orogen Affiliated Director from exercising his or her legal rights and fiduciary duties as a director of the Company or otherwise act in restrict his or her capacity as a member discussions solely among other members of the BoardBoard of Directors and/or management, advisors, representatives or agents of the Company or (iii) affect the Purchaser’s or the Purchaser Affiliates’ ability to hold the Notes or hold or vote any shares of Company Common Stock, including the shares of Company Common Stock issuable or issued upon conversion of the Notes.
(d) Notwithstanding anything in this Section 4.03 to the contrary, the prohibitions in this Section 4.03 shall immediately terminate without further force or effect and the Purchaser and the Purchaser Affiliates shall be released from compliance therewith if the Company (i) institutes a voluntary proceeding, or becomes the subject of an involuntary proceeding which involuntary proceeding is not dismissed within sixty (60) days, under any bankruptcy act, insolvency law or any law for the relief of debtors, (ii) has a receiver appointed to manage its affairs, which appointment is not dismissed, vacated or stayed within sixty (60) days or (iii) executes a general assignment for the benefit of creditors.
(e) During the Standstill Period, with respect to any portfolio company of Atairos, Orogen Group LLC, the Purchaser or any of their respective Affiliates, Purchaser agrees that Purchaser and its Affiliates will not cause such portfolio company to take any action or engage in any conduct (x) not permitted to be taken by Purchaser or its Affiliates under the foregoing provisions of this Section 4.03 or (y) that would result in such portfolio company being a “group” with Purchaser with respect to any matters restricted by this Section 4.03.
Appears in 1 contract
Standstill. (a) Until the later of Provided that nothing contained herein will prevent or prohibit Lilly from acquiring Voting Stock (xas defined below) the three (3)-year anniversary of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination Company pursuant to Section 1.1 (the Purchase Agreement or have irrevocably waived their right), each Shareholder agrees that, without the prior approval pursuant to conversion of the BoardNote, such Shareholder Lilly will not, directly or indirectly:
, without the prior consent of a majority of the Board of Directors of the Company (the "Board"), (i) acquire, acquire (or offer or propose to acquire, solicit an offer to sell or agree to acquire) any Voting Stock if, as a result, Lilly would beneficially own more than 20% of the then outstanding Voting Stock; (ii) directly or indirectly solicit proxies or consents or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act) in opposition to the recommendation of the majority of the Board for a Takeover Event (as defined below); or (iii) transfer to any third party (other than to its "affiliates," "associates" (as such terms are defined in Rule 12b-2 under the Exchange Act), officers, directors or employees and other than pursuant to a proxy solicitation conducted by or on behalf of the Board), the right to vote any Voting Stock except in connection with the transfer of ownership of such Voting Stock for fair value. Lilly also agrees that it will not advise, assist or encourage any third party to do any of the foregoing. Notwithstanding the foregoing, (x) Lilly will not be obligated to dispose of any Voting Stock it owns if its percentage ownership is increased as a result of a decrease in the number of shares of Voting Stock outstanding, and (y) in the event of any bona fide third party tender or exchange offer for at least 50% of the outstanding Voting Stock of the Company, Lilly will be free to tender or exchange any or all of its Voting Stock and/or take such other actions as it deems advisable, in its sole discretion. The covenants in this Section 14(a) shall expire upon the later of (i) the fifth anniversary of the date hereof and (ii) the first anniversary of the termination of the Collaboration Agreement, dated as of the date hereof, between the Company and Lilly (the "Collaboration Agreement").
(b) The Company will give Lilly prompt notice of the receipt by the Company of any written notice couched in such terms as to put the Company reasonably on notice of the likelihood that a person or group has acquired or is proposing to acquire an aggregate position of at least 10% of the Voting Stock, the Company's receiving any bona fide offer to purchase or acquire 20% or more of the Voting Stock or all or substantially all of the assets of the Company, and any Board determination to seek an acquiror for in excess of 50% of the Voting Stock.
(c) Lilly will cause its affiliates and associates to comply with the provisions of this Section 14, whether directly or indirectly, alone individually or in concert with others, by purchase or otherwise, two percent (2%) or more as part of any direct or indirect “beneficial ownership” a "group" (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act). When used in this Section 14, the term Lilly includes Lilly together with its affiliates and associates.
(d) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 For purposes of this Agreement;
(ii) except as otherwise expressly provided in this AgreementSection 14, make, the term "TAKEOVER EVENT" means any proposal for any merger or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, 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;
(iv) 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 or intangible, of business combination involving the Company or any of its Affiliates subsidiaries, the purchase or (ii) direct sale of all or indirect rights, warrants or options to acquire any substantially all of the assets of the Company or any of its Affiliatessubsidiaries, or the purchase of at least 20% of the Voting Stock, by tender offer or otherwise (except for such assets as are then being offered for sale pursuant to the exercise of rights, warrants, options or similar securities distributed by the Company or to holders of Voting Stock generally), and the term "VOTING STOCK" means the Common Stock and any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities preferred stock of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more possessing voting rights and eligible to participate in votes of any voting securities or assets all of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose 's stockholders pursuant to the Company or Company's Certificate of Incorporation and Delaware law, and includes any of its shareholders any amalgamationoptions, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of convertible securities or other transaction rights to or with the Company or otherwise seek, alone or in concert with others, to control, change or influence the management, board of directors or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an amendment or waiver of the provisions of this Section 2.3, which the Company may accept or reject in its sole discretion, so long as any acquire such request is made in a manner that does not require public disclosure thereof; or
(viii) take any action that might result in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a)stock.
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the Board.
Appears in 1 contract
Samples: Registration Rights and Standstill Agreement (Isis Pharmaceuticals Inc)
Standstill. (a) Until From the later date of (x) this Agreement until the three (3)-year anniversary Termination Date, none of the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the prior approval members of the Board, such Shareholder will notPotrero Group shall, directly or indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquireand each member of the Potrero Group agrees not to, directly or indirectly, and to cause each of its Representatives (as defined below) acting on its behalf and each of its Affiliates (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act, not to, directly or indirectly, in any manner, alone or in concert with others, by purchase or otherwisewith respect to the Company:
(a) (i) make, two percent (2%) or more of any direct or indirect “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquireengage in, or securities convertible into or exchangeable forencourage, two percent (2%) or more of any voting securities of the Companyassist, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Sharessupport, bonus issueadvise, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, make, facilitate or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote proxies (as such terms are term is used in the proxy rules of the SEC promulgated pursuant but without regard to Section 14 the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act), whether subject to, ) or exempt from the federal proxy rules, seek consent to advise or influence in any manner whatsoever any Person vote with respect to the voting of any voting securities of the Company or seek any securities convertible or exchangeable into or exercisable for any such securities or any derivatives thereof (collectively, “Securities of the Company”), or (ii) become a “participant” in any contested “solicitation” for the election of directors with respect to propose to the Company (as such terms are defined or used under the Exchange Act and the rules of the SEC promulgated thereunder), except as otherwise provided in Section 3 of this Agreement;
(b) (i) encourage, influence, assist, support, facilitate or advise any Person (as defined below) or encourage, influence, assist, support, facilitate, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join join, or in any way participate in a any “partnership, limited partnership, syndicate or other group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules of the SEC promulgated thereunder) with any Person with respect to any Securities of the Company or (ii) otherwise in any manner agree, attempt, seek or propose to deposit any Securities of the Company in any voting securities trust or similar arrangement, or (iii) subject any Securities of the Company to any arrangement or agreement with respect to the voting thereof, except as otherwise provided in Section 3 of this Agreement;
(c) encourage, advise, assist, facilitate, support or influence any Person with respect to the giving or withholding of any proxy, consent or other authority to vote any Securities of the Company, including, without limitation, engaging in any withhold the vote campaign, except as otherwise provided in Section 3 of this Agreement;
(d) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist, facilitate, support or encourage, or pay or subsidize the expenses of, or otherwise finance, any other Person to effect or seek to effect, offer or propose to effect or recommend, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution or other extraordinary transaction involving any of the Company or any Securities of the Company (each, an “Extraordinary Transaction”); provided, however, that nothing in this clause (d) shall prevent any member of the Potrero Group from tendering or exchanging Securities of the Company in, or voting in favor of, any Extraordinary Transaction in accordance with Section 3 of this Agreement;
(e) (i) call or seek to call any meeting of stockholders, including by written consent, (ii) seek representation on, or nominate any candidate to, the Board, (iii) seek the removal of any member of the Board, (iv) acquiresolicit consents from stockholders or otherwise act or seek to act by written consent, offer or conduct a referendum of stockholders, (v) make a request for any stockholder list or other books and records of the Company, whether pursuant to acquire Rule 14d-5 or agree Rule 14a-7 of the Exchange Act, Section 220 of the Delaware General Corporation Law, or otherwise, (vi) propose any item of business for action by the stockholders of the Company at any meeting of the stockholders of the Company, whether under Rule 14a–8 of the Exchange Act or otherwise; (vii) institute, solicit, assist, pursue, join or maintain any litigation, arbitration or other action (including any legal, equitable, injunctive or other action) against the Company in its capacity as a stockholder or on behalf of the Company in a stockholder derivative capacity or in any other capacity, other than (A) litigation by the Potrero Group to acquireenforce the provisions of this Agreement, directly (B) counterclaims with respect to any proceeding initiated by, or indirectlyon behalf of, the Company or its Affiliates against the Potrero Group and (C) the exercise of statutory appraisal rights; provided, that the foregoing shall not prevent any member of the Potrero Group from responding to or complying with a validly issued legal process, or (viii) make any public demands, objections, proposals, recommendations, or other written communications to the Company or any member of the Board or management of the Company in its capacity as a stockholder, on behalf of the Company in a stockholder derivative capacity, or otherwise;
(f) acting alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others, to seek to propose to the Company or any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation of or other transaction to or with the Company or otherwise seek, alone or in concert with others, to control, change control or influence the management, board of directors strategies, governance, policies or policies of the Company or nominate any Person as a director who is not nominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders other aspect of the Company;
(viig) authorize, solicit, pay or subsidize any third party to perform, act in concert with another Person to, commit to, or agree in writing or otherwise to do, advise, assist or encourage any Person in connection with, or enter into any discussions, negotiations, arrangements or understandings with any Person with respect to, any act prohibited in this Section 2;
(h) disclose any intention, plan or arrangement inconsistent with the restrictions set forth in this Section 2; or
(i) take any action which would cause or require the Company to make public disclosure regarding any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request or proposal to the Chief Executive Officer or Chairman of the Board of the Company seeking an foregoing or publicly request any amendment or waiver of the provisions restrictions set forth in this Section 2; provided that, any private request made not in violation of this Section 2.3, which the Company may accept or reject in its sole discretion, so long as any such request is 2(i) shall be made in a manner that does would not require be likely to lead to public disclosure thereof; or
(viii) take by any action that might result person. Notwithstanding the foregoing, nothing in the Company having to make a public announcement regarding any of the matters referred to in clauses (i) through (vii) of this Section 2.3(a), or announce an intention to do, or enter into any arrangement or understanding or discussions with others to do, any of the actions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights of its Common Shares or Series A Preference Shares or 2 shall restrict the ability of members of the Shareholders’ director designee elected Potrero Group from making private statements to members of the Board pursuant to Section 1.1 to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member senior members of management of the BoardCompany in a manner that would not be likely to lead to public disclosure by any person of such statements.
Appears in 1 contract
Standstill. (a) Until the later of (x) the three (3)-year anniversary of the Closing and (y) From the date on which no nominee designated by of this Agreement until the Majority Approved Holders serves on Expiration Date or until such earlier time as the Board and the Shareholders are no longer entitled to designate any directors for nomination restrictions in this paragraph 13 terminate pursuant to Section 1.1 the terms of this Agreement (or have irrevocably waived their rightsuch period, the “Restricted Period”), each Shareholder agrees that, without the prior approval of the Board, such Shareholder will Investor shall not, directly and shall cause its Affiliates and Associates under its control or indirectly:
direction (icollectively, the “Restricted Persons”) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquirenot to, directly or indirectly, alone absent prior express written invitation or authorization by the Board:
a) engage in concert with others, by purchase or otherwise, two percent (2%) or more of any direct or indirect “beneficial ownershipsolicitation” (as such term is defined under the Securities Exchange Act of 1934, as amended and the rules promulgated thereunder (the “Exchange Act”)) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such term is defined in Rule 13d-3 and Rule 13d-5 Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of Common Shares, any securities convertible proxies or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), including pursuant to Section 2.1 of this Agreementconsents;
(iib) except as otherwise expressly provided in this Agreementknowingly encourage, make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act), whether subject to, or exempt from the federal proxy rules, seek to advise or influence any other Person or knowingly assist any Person in any manner whatsoever so encouraging, advising or influencing any Person with respect to the voting giving or withholding of any voting securities of the Company or seek to propose to influenceproxy, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication consent or other communications authority to securityholders intended for vote (other than such purposeencouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(iiic) except as otherwise expressly provided in this Agreement, form, join or act in concert with any way participate in partnership, limited partnership, syndicate or other group, including a “group” within the meaning of as defined pursuant to Section 13(d)(313(d) of the Exchange Act and the rules promulgated thereunder with any entity or person unaffiliated with Investor and with respect to any voting securities of the CompanyVoting Securities;
(ivd) 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 or intangible, of the Company or any of its Affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, make or in any way participate, directly or indirectly, in any financing for the purchase tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of two percent (2%) a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by extraordinary transaction involving the Company or any of its Affiliates;
subsidiaries or its or their securities or assets (vieach, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict Investor from tendering shares, receiving payment for shares or otherwise actparticipating 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); or 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 regarding any of its shareholders any amalgamation, merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation the types of or other transaction to or with the Company or otherwise matters set forth above in this paragraph;
(i) seek, 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 controlthe Board, change except as otherwise permitted in this Agreement, or influence (ii) seek, alone or in concert with others, the management, board removal of directors or policies any member of the Board, provided, however, that nothing in this Agreement shall prevent Investor or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting so long as such actions do not create a public disclosure obligation for Investor or the Company or nominate any Person as and are undertaken on a director who is not nominated by the then incumbent directors, or propose any matter basis reasonably designed to be voted upon by the shareholders of the Companyconfidential and in accordance in all material respects with Investor’s normal practices in similar circumstances;
f) make or be the proponent of any stockholder proposal (viipursuant to Rule 14a-8 under the Exchange Act or otherwise);
g) make any request for stock list materials or other books and records of the Company under the Maryland General Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
h) make any public proposal with respect to amend(i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization of the Company, (iii) any other material change in the Company’s management, business or corporate structure, or (iv) any waiver, amendment or modification to the Company’s Certificate of Incorporation or bylaws, or other actions which may affect or impede the acquisition of control of the Company by any person;
i) enter into any negotiations, agreements or understandings with any Third Party to take any action that Investor is prohibited from taking pursuant to this paragraph 13; or
j) make any public request or submit any public proposal, directly or indirectly, to amend or waive the terms of this Agreement, in each case which would reasonably be expected to result in a public announcement of such request or terminate any provision of Section 2.3(a)proposal; provided, that the restrictions in this clause paragraph 13 shall terminate automatically upon the earliest of (i) as a non-exclusive remedy for any material breach of this Agreement by the Company (including, without limitation, a failure to appoint the Investor Nominee or Additional New Director and otherwise constitute the Board in accordance with paragraph 1, a failure to appoint a replacement in accordance with paragraph 6, or a failure to issue the Company Press Release in accordance with paragraph 11), upon ten (10) business days’ prior written notice by Investor following any such material breach of this Agreement by the Company if such breach has not been cured within such notice period, provided that Investor is not in material breach of this Agreement at the time such notice is given, (ii) the announcement by the Company of a definitive agreement with respect to any Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities or all or substantially all of the Company’s assets, and (iii) the commencement of any tender or exchange offer (by a person other than Investor or its Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer. During the Restricted Period, the Company shall not prohibit a Shareholder from making a confidential request or proposal adopt and shall not propose the adoption of any amendment to the Chief Executive Officer Certificate of Incorporation or Chairman of the Board bylaws of the Company seeking that would reasonably be expected to impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future Company Annual Meeting of Stockholders, and nothing contained in this paragraph 13 shall prevent Investor from (i) privately communicating with the Company or the Board, (ii) making any public or private statement or announcement with respect to an amendment Extraordinary Transaction that is publicly announced by the Company or waiver a Third Party, and (iii) publicly commenting on any earnings announcement of the provisions of this Section 2.3, which the Company may accept or reject in its sole discretion, so long as any such request communication is made non-disparaging and otherwise not in a manner that does not require public disclosure thereof; or
(viii) take any action that might result in the Company having to make a public announcement regarding violation of any of the matters referred provisions in this paragraph 13. Nothing in this Agreement shall prevent the Company from responding to in clauses (i) through (vii) such Investor statements, subject to the obligations of Section 2.3(a)the Parties under paragraph 14, or announce an intention the Company or Investor from responding to doany factual statement as required by applicable legal process, subpoena, or enter into legal requirement or as part of a response to a request for information from any arrangement governmental authority with jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of discretionary acts by Investor or understanding or discussions with others to do, any of its Affiliates or by the actions restricted Company or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise exercise rights any of its Common Shares Affiliates, as applicable). Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 13 shall prohibit or Series A Preference Shares restrict the Investor Nominee or the ability of the Shareholders’ director designee elected to the Board pursuant to Section 1.1 to vote or otherwise exercise Additional New Director from exercising his or her legal rights and fiduciary duties as a director of the Company or otherwise act in restrict his or her capacity as a member discussions solely among other members of the BoardBoard and/or management, advisors, representatives or agents of the Company.
Appears in 1 contract
