Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others: (i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise); (ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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; (iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock; (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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements; (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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);
Appears in 3 contracts
Samples: Nomination and Standstill Agreement (PW Partners Atlas Fund III, LP), Nomination and Standstill Agreement (HG Vora Capital Management, LLC), Nomination and Standstill Agreement (Town Sports International Holdings Inc)
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from From the date hereof until the termination of this Agreement in accordance with Section 5 (until the “Covered expiration of the Commitment Period”), except as expressly set forth in this Agreementeach of the Investors shall not, neither it nor any of and shall cause its Affiliates or Associates will(collectively, “Restricted Persons”) and it will cause each of its Affiliates and Associates shall instruct their respective Representatives not to, directly or indirectly indirectly, absent prior express written invitation or authorization by the Board:
(a) engage in any manner“solicitation” (as such term is used in the proxy rules of the SEC) of proxies or consents with respect to the election or removal of directors of the Company or become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents;
(b) (i) seek, alone or in concert with others:
(i) make, engage inelection or appointment to, or in any way participate inrepresentation on, directly the Board or indirectlynominate or propose the nomination of, or recommend the nomination of, any “solicitation” candidate to the Board, except as set forth herein, (ii) seek, alone or in concert with others, the removal of proxies (as such terms are used in the proxy rules any member of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivBoard, (iii) conduct a referendum of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities stockholders of the Company or (iv) seek to call, request the call of or join with any securities convertible or exchangeable into or exercisable for any such securities (collectivelyother stockholder in a request to call, “securities a special meeting of the Company”’s stockholders;
(c) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Act) relating to the Company;
(d) encourage or advise any Person or assist any Person in encouraging or advising any other Person (i) with respect to the giving or withholding of any proxy or consent relating to, or other authority to vote, any Voting Securities, or (ii) in conducting any type of referendum relating to the Company (other than such encouragement or advice that is consistent with management’s recommendation in connection with a particular matter, in the case of each of (i) and (ii), solely with respect to the election or removal of directors;
(e) form, join, encourage, influence, advise join or act in any way participate in concert with any “group” (as such term is defined in pursuant to Section 13(d)(313(d) of the Securities Exchange Act for purposes of this Agreement1934, any such groupas amended (the “Exchange Act”), a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities Voting Securities, other than solely with the other Investors and Affiliates of the Company Investors with respect to Voting Securities;
(f) acquire, or otherwise in any manner agree, attemptoffer, seek or propose agree to deposit acquire, by purchase or otherwise, or direct any securities Third Party in the acquisition of, any Voting Securities of the Company Company, or engage in any voting trust swap or similar arrangementhedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the Investors having beneficial ownership of more than 10.0%, or subject any securities economic exposure to more than 10.0%, of the outstanding Company to any Shares;
(g) enter into a voting trust, arrangement or agreement with respect to the any Voting Securities, or subject any Voting Securities to any voting thereoftrust, except as expressly set forth in arrangement or agreement, other than (i) this Agreement, (ii) solely with the other Investors or Affiliates of the Investors, or (iii) granting proxies to the named proxies included in the Company’s proxy card for an annual meeting or a special meeting;
(iiih) acquireexcept as set forth herein, make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, or (ii) any waiver, amendment or modification to the Governing Documents of the Company;
(i) grant any proxy, consent or other authority to vote with respect to the election of directors other than to the named proxies included in the Company’s proxy card for an annual meeting;
(j) engage in, or offer or propose to acquire, or agree to acquireengage in, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group any transaction (including any Section 13(d) Group), through swap or hedging transactions or otherwise, ) that (i) reduces in any securities material respect the economic risk of ownership of any Company Shares owned by it or the Company other Restricted Persons or any rights decoupled (ii) decouples the economic risk of ownership from the underlying securities Voting Securities owned by it or the other Restricted Persons;
(k) engage in any short sale or any purchase, sale or grant of the Company that would result in any option, warrant, convertible security, stock appreciation right, or other similar right (A) including any put or call option or “swap” transaction with respect to any security) that includes, relates to or derives any significant part of its value from a decline in the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 market price or value of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common StockVoting Securities;
(ivl) sell, offer either alone or agree to sellin concert with others, directly or indirectly, through swap make any tender offer, exchange offer or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates be a party to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, purchase of a division, purchase of substantially all of the assets, recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other similar extraordinary transaction involving the Company or any of its subsidiaries or joint ventures its or any of their respective securities or assets (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, ) (it being understood that this clause the foregoing shall not (A) preclude restrict the tender Restricted Persons or their Representatives from tendering shares, receiving payment for shares or otherwise participating in any such transaction initiated by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities a Third Party on the same basis as other stockholders of the Company into or from participating in any tender such transaction that has been approved by the Board);
(m) institute, solicit, assist or exchange offerjoin any litigation, arbitration or vote other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this paragraph 8 other than to enforce the provisions of this Agreement and to defend (and/or assert counterclaims in) any PW Group Shareholders litigation in which any Restricted Person is a defendant;
(n) make any request for stock list materials or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities other books and records of the Company under Section 2-512 of the Maryland General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
(o) make or issue, or cause to be made or issued, any public disclosure, statement or announcement (including the filing or furnishing of any document or report with respect the SEC or any other governmental agency or any disclosure to any Extraordinary Transactionjournalist, member of the media or securities analyst) in support of any solicitation described in clauses (a), (Bb), (c) prohibit or (m) above;
(p) publicly disclose any PW Group Shareholders intention, plan or XX Xxxx Group Shareholders arrangement inconsistent with any provision of this paragraph 8; or
(q) make any request or Affiliate submit any proposal to amend or Associate thereof from offering waive the terms of this Agreement, in each case which would reasonably be expected to purchase securities or assets of the Company if the sale result in a public announcement of such securities request or assets is initiated by proposal. Notwithstanding anything to the Company through an open bidding processcontrary in this Agreement, nothing in this paragraph 8 shall prohibit or restrict the Investors from: (Ci) prohibit communicating privately with the Board or any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company’s officers regarding any matter in a manner that does not otherwise violate this Section 8; provided(ii) taking any action necessary to comply with any law, thatrule 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 in a manner that does not otherwise violate this paragraph 8; or (iii) communicating with its investors in quarterly or annual letters provided such communications are subject to standard confidentiality obligations. The Investors acknowledge and agree that they shall be liable for any breach by their respective Affiliates or Representatives of any of the case terms of (B) and (C) abovethis Agreement applicable to such Representatives. In addition, the PW Group Shareholders orCompany agrees to provide the Investors, in upon the event that one or more Investors’ reasonable request, with the same degree, type and frequency of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice access to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, Board and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs members of the Company);’s senior management that is customarily provided to other stockholders with similarly sized shareholdings in the Company.
Appears in 2 contracts
Samples: Letter Agreement (EJF Capital LLC), Letter Agreement (PHH Corp)
Standstill. (a) Each During the Covered Period (unless specifically otherwise requested in writing by the Company, acting through a resolution of a majority of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Company’s directors), each Member of the Nokomis Group shall not, and shall cause each Nokomis Affiliate not to (except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to), directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies “proxies” (as such terms are defined in or used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange ActAct and Regulation 14A thereunder) or consents to vote, or seek to advise, encourage or influence (including, for the avoidance of doubt, by encouraging or participating in any “withhold” or similar campaign) any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for with respect to the election or removal of individuals to the Board directors or to approve shareholder stockholder proposals, or become a “participant” (as such term is defined in or used under the Exchange Act and Regulation 14A thereunder) in any contested “solicitation” solicitation for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act) (other than a “solicitation” solicitation or acting as a “participant” participant in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or make, be the proponent of or cause any shareholder person to initiate any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act Act, the Company’s Bylaws or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” group (as such term is defined in within the meaning of Section 13(d)(3) under the Exchange Act) with any person who is not identified on Schedule A as a Member of the Exchange Act for purposes of this Agreement, Nokomis Group or a Nokomis Affiliate (any such groupperson, a “Section 13(d) GroupThird Party”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquireconsciously work in parallel, or agree to acquireotherwise participate in a joint activity or course of action, directly with any Third Party (other than the Company) toward acquiring control or indirectlyotherwise exercising a controlling influence over the management and policies of the Company, 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 Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect not pursuant to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stockan express agreement;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW the Nokomis Group Shareholders or XX Xxxx Group Shareholders or an a Nokomis Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary TransactionTransaction in accordance with Section 1(c);
(v) (A) call, seek to call or request the call of any meeting of stockholders, including by written consent, (B) prohibit seek representation on, or nominate any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets candidate to, the Board, except as specifically set forth in Section 1, (C) seek the removal of any member of the Company if the sale Board, (D) solicit consents from stockholders or otherwise act or seek to act by written consent, (E) conduct a referendum of such securities or assets is initiated by the Company through an open bidding processstockholders, or (CF) prohibit make a request for any PW Group Shareholders stockholder list or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock other books and records of the Company; provided, thatwhether pursuant to applicable law, the Company’s Bylaws or otherwise, except by any Nokomis Designee in his or her capacity as a director;
(vi) except in connection with the case enforcement of this Agreement or passive participation as a class member in any class action (which, for the avoidance of doubt, shall not include participation as a name or lead plaintiff) with respect to any event or circumstance occurring prior to the date of this Agreement, initiate, encourage or participate in any litigation against the Company or any of its subsidiaries or their respective directors or officers, or in any derivative litigation on behalf of the Company, except for testimony in any legal proceeding that may be required by law;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors, 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 of the Company, (C) above, the PW Group Shareholders or, any other material change in the event that one or more of the Nominees or their Replacements are officersCompany’s management, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);corporate structure,
Appears in 2 contracts
Samples: Appointment and Standstill Agreement (Widepoint Corp), Appointment and Standstill Agreement (Widepoint Corp)
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from For a period commencing with the date hereof until the termination of this Agreement in accordance with Section 5 and ending on the first anniversary of the date of this Agreement (the “Covered Standstill Period”), except as expressly set forth in this Agreementeach party and its Representatives shall not, neither it nor any without the prior written consent of the other party (the “Target”) or its Affiliates or Associates will, and it will cause each board of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with othersdirectors:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iiia) acquire, publicly offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions purchase or otherwise, any securities Voting Securities (as defined below) or direct or indirect rights to acquire any Voting Securities of the Company Target or any rights decoupled from the underlying securities of its subsidiaries, or of any successor to or person in control of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and Target, or any assets of other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 party or any subsidiary or division of the Exchange Act, over more than 17.49% in the aggregate Target or of the shares of Common Stock outstanding at any such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase successor or similar Company action that reduces the number of outstanding shares of Common Stockcontrolling person;
(ivb) sellmake, offer or agree to sellin any way participate, directly or indirectly, through swap in any “solicitation” of “proxies” to vote (as such terms are used in Regulation 14A promulgated under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), or hedging transactions seek to advise or otherwise, influence any person or entity with respect to the securities voting of any Voting Securities of the Company Target;
(c) form, join or in any rights decoupled from the underlying securities held by the PW Group/XX Xxxx way participate in a 13D Group Shareholders or any of their Affiliates to any Third Party (as defined below) that would knowingly result ), in such Third Party, together connection with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacementsforegoing;
(vd) effect or seek take any action that could reasonably be expected to effect require the Target to make a public announcement regarding the possibility of any of the events described in clauses (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, liquidation, dissolution or other extraordinary transaction involving a) through (c) above; or
(e) publicly request the Company Target or any of its subsidiaries Representatives, directly or joint ventures indirectly, to amend or waive any provision of their respective securities this paragraph. Notwithstanding the foregoing, if, at any time during the Standstill Period,
(each, an “Extraordinary Transaction”), i) any person or make 13D Group (other than any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (Aperson or 13D Group which includes the party or its Representatives) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof acquires beneficial ownership of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale Voting Securities of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one party representing 20% or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days then outstanding Voting Securities of the Board’s decision Target;
(ii) any person or 13D Group (other than any person or 13D Group which includes the party or its Representatives) announces or commences a tender or exchange offer to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement acquire Voting Securities of the commencement of the hostile tender offerTarget which, as applicableif successful, and from after delivery would result in such person or 13D Group owning, when combined with any other Voting Securities of such notice and until party owned by such time as the PW Group Shareholders orperson or 13D Group, in the event that one 20% or more of the Nominees or their Replacements are employees ofthen outstanding Voting Securities of the Target;
(iii) the Target enters into, or Disclosing Nominees toresolves to enter into, any merger, sale or other business combination transaction pursuant to which the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions outstanding shares of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs common stock of the Company)Target would be converted into cash and/or securities and/or property of another person or 13D Group or 50% or more of the then outstanding shares of common stock of the Target would be owned by persons other than the then current holders of shares of common stock of the Target, or which would result in all or a substantial portion of the Target’s assets being sold to any person or 13D Group;
Appears in 2 contracts
Samples: Confidentiality Agreement (Sap France S.A.), Confidentiality Agreement (Business Objects S.A.)
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly Shire agrees that for a period of two years from the date hereof until of the termination first exercise of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this AgreementOption, neither it nor any of its Affiliates or Associates affiliates will, and it will cause each without the prior written consent of Xxxxxxx or its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with othersBoard of Directors:
(ia) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, voting securities or direct or indirect rights to acquire any voting securities of Xxxxxxx, or of any successor to or person in control of Xxxxxxx representing in excess of 20% of the then outstanding voting equity of such entity, or any material portion of the assets of Xxxxxxx or any subsidiary or division thereof or of any such successor or controlling person;
(b) make, engage in, or in any way participate inparticipate, directly or indirectly, in any “"solicitation” " of proxies "proxies" to vote (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Securities and Exchange Act) or consents to voteCommission), or seek to advise, encourage advise or influence any person with respect to the voting of any voting securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Xxxxxxx which Shire does not then own;
(iic) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any Xxxxxxx Acquisition Transaction; or
(d) form, join, encourage, influence, advise join or in any way participate in any “a "group” (" as such term is defined in Section 13(d)(3) of the Securities Exchange Act for purposes of this Agreement1934, any such groupas amended (the "Exchange Act"), a “Section 13(d) Group”) or enter into discussions with any persons person other than Xxxxxxx, in connection with any of the foregoing. Notwithstanding the foregoing, paragraphs (a) through (d) above shall not be binding on Shire if, without the appraisal of the Xxxxxxx board of directors, (A) any person or group of person (other than a Section 13(dany person specified in Rule 13d-1(b)(1)(i) Group that includes all and (ii) under the Exchange Act or some Shire and its affiliates) acquires beneficial ownership of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and AssociatesCommon Stock, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company convertible into or otherwise in exchangeable for 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;
Common Stock (iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares combination of Common Stock outstanding at and such timesecurities), and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 representing 10% or more of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of then total outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) it has been publicly announced or otherwise publicly disclosed that any transaction approved by written consent person or group of a majority of the Boardpersons, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving the Company than Shire or any of its subsidiaries affiliates, proposes to effect or joint ventures has effected (1) a merger, consolidation or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement other business combination transaction with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary TransactionXxxxxxx, (B2) prohibit any PW Group Shareholders sale, lease, exchange, transfer or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets other disposition of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the assets of Xxxxxxx and its subsidiaries, taken as a whole, (3) a tender offer or exchange offer for more than 10% of the outstanding shares of Common Stock, or (4) any solicitation of proxies with respect to shares of Common Stock by any person or group of persons (other than Shire or any of its affiliates) with respect to either the election of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one directors or more relating to any transaction of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice kind referred to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);this paragraph.
Appears in 2 contracts
Samples: Option Agreement (Shire Pharmaceuticals Group PLC), Option Agreement (Roberts Pharmaceutical Corp)
Standstill. (a) Each of During the PW Group/XX Xxxx Group Shareholders solely on behalf of itself Standstill Period, the Investor shall not, and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of shall cause its Affiliates or Associates will(collectively, and it will cause each of its Affiliates and Associates “Restricted Persons”) not to, directly or indirectly in any mannerindirectly, alone absent prior express written invitation or in concert with othersauthorization by the Board:
(ia) makesolicit proxies, engage indesignations or written consents of shareholders, or conduct any binding or nonbinding referendum with respect to Company Shares, or encourage or participate in any campaign to withhold proxies or votes for director nominees recommended by the Board, or make or in any way participate in, directly or indirectly, in any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote or withhold the Exchange Act) or consents to vote, or seek to advise, encourage or influence vote of any person Company Shares with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, or become a “participant” in any contested “solicitation” solicitation for the election of directors with respect to the Company (as such terms are defined or used under in the Exchange Act) (Act and the rules promulgated thereunder), other than a “solicitation” solicitations or acting as a “participant” in support of all the recommendations of the nominees Board;
(b) (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 the Board (other than as expressly contemplated by paragraphs 1(b)(i), 1(b)(v) and 2), (ii) seek, alone or in concert with others, the removal of any member of the Board at Board, except as expressly set forth herein, or (iii) seek to call, request the call, join with any shareholder meetingother stockholder in a request to call or call, a special meeting of the Company’s stockholders;
(c) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Company Shares, or deposit any Company Shares in a voting trust or similar arrangement, or subject any Company Shares to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any Company Shares (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with one or more Affiliates of Investor with respect to the Company Shares acquired in compliance with paragraph (e) below or to the extent such a group may be with the Company or any of its Affiliates (it being understood that the holding by persons or entities of Company Shares in accounts or through funds not managed or controlled by the Investor or any Investor Affiliate shall not give rise to a violation of this paragraph 6(c) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by the Investor or any of its Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Investor within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Shares; provided there does not exist as between such persons or entities, on the one hand, and the Investor or any of its Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this paragraph 6(c));
(d) make or be the proponent of any shareholder nomination or stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise), or encourage any nomination or stockholder proposal, at any meeting of the Company stockholders or in connection with any action in lieu of a meeting (other than as expressly contemplated by paragraphs 1(b)(i), 1(b)(v) and 2);
(e) acquire, or offer, seek or agree to acquire, by purchase or otherwise, Economic Ownership of any Company Shares or a Synthetic Long Position with regard to Company Shares if, in any such case, immediately after taking such action, the Investor together with its Affiliates, would, in the aggregate, (i) Economically Own more than 30.0% of the then outstanding Company Shares or (ii) formhave a Total Net Long Position relating to a number of Company Shares greater than 30.0% of the then outstanding Company Shares;
(f) propose, join, encourage, influence, advise offer or in any way participate in (i) any “group” effort to acquire the Company or any of its subsidiaries or any material assets or operations of the Company or any of its subsidiaries, (ii) any effort to engage in a transaction or enter into any agreement that would result in Economic Ownership by any person or entity or group (as such term is defined in Section 13(d)(3) of the Exchange Act) of more than 30% of the outstanding Company Shares at any time or outstanding voting power of the Company at any time, (iii) any tender offer, exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its subsidiaries, (iv) any effort with respect to share repurchases, dividends or self-tenders, other than as recommended by the Company, (v) any plan or proposal that would relate to any of the items listed in Item 4 of Schedule 13D promulgated under the Exchange Act for purposes of this Agreement(except as contemplated hereby), or (vi) any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any such groupof its subsidiaries or any material portion of their businesses;
(g) engage in any short sale or any purchase, a 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 “Section 13(d) Group”) swap” transaction with respect to any persons security (other than a Section 13(dbroad based market basket or index) Group or other Synthetic Short Position) that includes all includes, relates to or some derives any significant part of its value from a decline in the market price or value of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company Company;
(h) seek to advise, encourage, support or otherwise in influence 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 person with respect to the voting thereofvoting, except as expressly set forth in this Agreement;
(iii) acquiregiving or withholding of any proxy, offer or propose to acquireconsent, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) authority with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 Voting Securities of the Exchange ActCompany (except that nothing herein shall restrict the Investor or its Affiliates from providing such advice, over more than 17.49% in encouragement, support or influence (i) that is consistent with the aggregate Company’s recommendations on such matters or (ii) voting, giving or withholding of the shares of Common Stock outstanding at such timeany proxy, and (B) consent, or other authority on matters with respect to which the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be Investor is not required by Paragraph 4 to vote in a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stockspecified manner);
(ivi) sellpublicly disclose, offer or agree 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 sellany journalist, directly member of the media or indirectlysecurities analyst) of, through swap any intent, purpose, plan or hedging transactions proposal to obtain any waiver, consent under, or otherwiseamendment of, any of the provisions of paragraph 4 or paragraph 6 hereof, or otherwise (i) publicly seek in any manner to obtain any waiver, consent under, or amendment of, any provision of this Agreement or (ii) bring any action or otherwise act to contest the validity or enforceability of paragraph 4 or paragraph 6 hereof or publicly seek a release from the restrictions or obligations contained in paragraph 4 or paragraph 6;
(j) make or issue or cause to be made or issued any public disclosure, announcement or statement (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) (i) in support of any solicitation described in paragraph (a) above (other than solicitations on behalf of the Board), or (ii) in support of any matter described in paragraph (b) or paragraph (d) above;
(k) make any request for stockholder list materials of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined belowunder Section 220(b) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such timeDelaware General Corporation Law or otherwise; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;or
(vl) effect or seek to effect (including, without limitation, by entering enter into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer person or propose entity with respect to effect, cause or participate inthe foregoing, or advise, assist, encourage, support or seek to persuade others to take any action with respect to any of the foregoing, or act in concert with others or as part of a group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 6 shall prohibit or restrict (x) any Investor Nominee acting in his or her capacity as a director of the Company or member of a Committee of the Board from engaging in private discussions with the Board, any Committee, any director or member of the Company management or from requesting or receiving access to any documents or information to which a director or member of a Committee is entitled under applicable law or (y) the Investor or its Representatives from (i) communicating privately with the Board or any of the Company’s officers regarding any matter in a manner that does not otherwise violate this paragraph 6, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications (including, without limitation, in any way assist document or facilitate report filed with the SEC),
(ii) taking any other person action necessary to effect comply with any law, rule or seekregulation or any action required by any governmental or regulatory authority or stock exchange that has, offer or propose to effect or participate inmay have, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving jurisdiction over the Company Investor or any of its subsidiaries Affiliates in a manner that does not otherwise violate this paragraph 6 or joint ventures or any of their respective securities (eachiii) communicating with its investors. Except as expressly provided in paragraph 4, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities each of the Investor and its Affiliates shall be entitled to vote Company into Shares beneficially owned by it as it determines in its sole discretion and or tender Company Shares in any tender offer or exchange offer. Notwithstanding anything to the contrary in this Agreement, or vote nothing in this paragraph 6 shall limit the exercise in good faith by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale Investor Nominee of such securities person’s duties or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities rights in such person’s capacity as a director of the Company in the event the Company enters into negotiations accordance with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);fiduciary duties.
Appears in 2 contracts
Samples: Board Appointment Agreement, Board Appointment Agreement (National CineMedia, Inc.)
Standstill. Investor hereby agrees that, without the prior approval of the Board (as defined in the Purchase Agreement), Investor shall not and shall not permit or cause any Affiliate (as defined in the Purchase Agreement) or Representative of Investor to:
(a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, acting alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender merger, business combination or exchange offerin any other manner, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate any voting securities or other group (including any Section 13(d) Group), through swap direct or hedging transactions or otherwise, indirect rights to acquire any securities of the Company or any rights decoupled from the underlying securities subsidiary thereof, or of any successor to or person in control of the Company that would result in (A) with respect to the PW Group Shareholders (if after such acquisition Investor, together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipits Affiliates, as determined in accordance with Rule 13d-3 would own more than 10% of the Exchange Act, over more than 17.49% in the aggregate outstanding capital stock of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 Company or voting power of the Exchange ActCompany, over more than 17.49% in the aggregate or any assets of the shares Company or any subsidiary or division thereof or of Common Stock outstanding at any such timesuccessor or controlling person; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result any investment by Investor or an Affiliate of a share repurchase Investor in third-party mutual funds or other similar Company action passive investment vehicles that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the hold interests in securities of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to be taken into account for the purpose of this subparagraph (Aa);
(b) enter into any transaction with a Third Party who already has a Schedule 13G on file with the SEC voting agreements, trusts or similar arrangements with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result voting securities of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more Company other than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacementsas set forth herein;
(vc) 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 inmake, or in any way assist participate, directly or facilitate indirectly, in any other “solicitation” of “proxies” to vote (as such terms are used in the rules promulgated by the Securities and Exchange Commission (the “Commission”)), or seek to advise or influence any person or entity with respect to effect the voting by any third party of any voting securities of the Company;
(d) make any public announcement, directly or seekindirectly, with respect to, or submit a proposal for, or offer of (with or propose to effect or participate in, without conditions) any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries securities or joint ventures assets;
(e) form, join or in any way participate in a “group” as defined in Section 13(d)(3) (a “13D Group”) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) , in connection with any of their respective securities the foregoing;
(eachf) act, an “Extraordinary Transaction”)alone or in concert with others, to seek to control, advise, change or make any public statement with respect to an Extraordinary Transaction; providedinfluence the management, howeverBoard, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offergoverning instruments, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business policies or affairs of the Company);
(g) disclose any intention, plan or arrangement inconsistent with the foregoing;
(h) have any discussions or enter into any arrangement with, or advise, assist or encourage any other person in connection with any of the foregoing events;
(i) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any of the events described in clauses (a) through (h) above; or
(j) request the Company or any of its agents or Representatives, directly or indirectly, in any public manner, to amend or waive any of the foregoing provisions.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement, Common Stock Purchase Agreement (Denali Therapeutics Inc.)
Standstill. (a) Each of the PW Group/XX Xxxx members of the Biglari Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Standstill Period”), except as expressly set forth in this Agreement, neither he or it nor any of its Affiliates or Associates willwill not, and he or it will cause each of such person’s Affiliates or agents or other persons acting on his or its Affiliates behalf not to, and will use commercially reasonable efforts to cause his or its respective Associates not to, directly or indirectly in any manner, alone or in concert with others:
(a) submit, or otherwise induce or encourage any other 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, and will not nominate any candidate for election to the Board or oppose the directors nominated by the Board;
(b) 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 (i) with respect to the members of the Biglari Group, solely with other members of the Biglari Group and/or one or more Affiliates of a member of the Biglari Group or (ii) to the extent such a group may be deemed to result between the members of the Biglari Group and the Company or any of its Affiliates, in each case, as a result of this Agreement;
(c) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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) (), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be annual meeting of shareholders of the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Company;
(iid) formseek, join, encourage, influence, advise or in any way participate in any “group” (capacity other than as such term is defined in Section 13(d)(3) a member of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a acting majority of the Board, excluding to call, or to request the Nominees and their Replacementscall of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce or encourage any other person to initiate such proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(ve) in any capacity effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transactionsubsidiaries; provided, however, that this clause the foregoing shall not (A) preclude be deemed to prevent the tender by Biglari Group from making any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of proposal regarding any securities of the Company into any tender foregoing directly to the Board or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock management of the Company; provided;
(f) publicly disclose, thator cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 6(b) or this Section 7, or otherwise seek (in any manner that would require public disclosure by any of the members of the Biglari Group or their respective Affiliates or Associates) to obtain any waiver, consent under, or any amendment of, any provision of this Agreement;
(g) enter into any arrangements, understandings or 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 engage, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more any of the Nominees foregoing; or
(h) take or their Replacements are officers, directors cause or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice induce others to the Company of its election to act as a potential bidder for the Company within 10 days take any action inconsistent with any of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);foregoing.
Appears in 2 contracts
Samples: Registration and Standstill Agreement (Biglari Capital Corp.), Registration and Standstill Agreement (Insignia Systems Inc/Mn)
Standstill. (a) Each of the PW Group/XX Xxxx members of the Shareholder Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Standstill Period”), except as expressly set forth in this Agreement, neither he or it nor any of its Affiliates or Associates willwill not, and he or it will cause each of such person’s Affiliates or agents or other persons acting on his or its Affiliates behalf not to, and will use commercially reasonable efforts to cause his or its respective Associates not to, directly or indirectly in any manner, alone or in concert with others:
(ia) submit, or otherwise induce or encourage any other 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, and will not nominate any candidate for election to the Board or oppose the directors nominated by the Board;
(b) 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 solely with other members of the Shareholder Group or one or more Affiliates of a member of the Shareholder Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(c) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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) (), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board (including Xxxxxxx and the Additional Director) at any shareholder meeting) or make or be the proponent 2015 Annual Meeting of any shareholder proposal (pursuant Shareholders and each subsequent annual meeting of shareholders with respect to Rule 14a-8 under which the Exchange Act or otherwise)Board has nominated Xxxxxxx and the Additional Director;
(iid) formseek, join, encourage, influence, advise or in any way participate in any “group” (capacity other than as such term is defined in Section 13(d)(3) a member of the Exchange Act for purposes of this AgreementBoard, any such groupto call, or to request the call of, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some special meeting of the persons identified on the Group 13Ds (as defined below) as shareholders of the date hereof and their Affiliates and AssociatesCompany, but not including or seek to make, or make, a shareholder proposal at any other entities or persons not identified on the Group 13Ds as meeting of the date hereof) with respect to any securities shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce or encourage any other person to initiate such proposal or request) or otherwise acting alone, or in any manner agree, attemptconcert with others, seek to control or propose to deposit any securities influence the governance or policies 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 AgreementCompany;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(ve) effect or seek to effect effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any material assets or businesses, of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of their respective the media or securities (eachanalyst) of any intent, an “Extraordinary Transaction”)purpose, plan or proposal to obtain any waiver, or make consent under, or any amendment of, any of the provisions of Section 4(f) or this Section 5, or otherwise seek (in any manner that would require public statement disclosure by any of the members of the Shareholder Group or their Affiliates or Associates) to obtain any waiver, consent under, or any amendment of, any provision of this Agreement;
(g) 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
(h) take or cause or induce others to take any action inconsistent with respect to an Extraordinary Transaction; provided, however, any of the foregoing. It is understood and agreed that this clause Agreement shall not (A) preclude the tender by be deemed to prohibit Xxxxxxx from engaging in any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company lawful act in the event the Company enters into negotiations with his capacity as a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock director of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);.
Appears in 2 contracts
Samples: Standstill Agreement (Air T Inc), Standstill Agreement (Insignia Systems Inc/Mn)
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely Sherborne agrees (on behalf of itself itself, the Sherborne Designee and its respective Affiliates and Associates hereby severally and not jointly agrees that from affiliates) that, during the date hereof until the termination of this Agreement in accordance with Section 5 Covered Period (the “Covered Period”as defined below), except as expressly set forth unless specifically requested in this Agreementwriting by the Company or a majority of the Board, neither it nor any of its Affiliates or Associates willshall not, and it will shall cause each of its Affiliates and Associates the members of the Sherborne Group (including the Sherborne Designee) not to, directly or indirectly (including, without limitation, through its advisors, agents, representatives or third parties), in any manner, alone or in concert with others:
(i) make, (A) engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are term is used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of promulgated under the Exchange Act) or consents to vote, or seek to advise, knowingly encourage or knowingly influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) including for the election of individuals to the Board or to approve shareholder stockholder proposals, or (B) 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) (), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting, (C) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise), (D) grant a proxy with respect to its Common Stock to any person not a party to this Agreement, director or officer of the Company, a member of the Sherborne Group or a Sherborne Representative (as defined below) (a “Third Party”) or (E) disclose publicly or to any Third Party its voting intentions or votes as to matters submitted to a stockholder vote during the Covered Period, except as to this clause (E), to the extent legally required, as to its vote on any proposal with respect to an Extraordinary Transaction;
(ii) (A) form, join, knowingly encourage, influence, advise knowingly influence or act in any way participate concert with in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some who are not members of the persons identified on the Sherborne Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek its securities or propose (B) agree 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 set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Sherborne Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) the members of the Sherborne Group) owning, controlling or otherwise having any beneficial ownership, as determined or other ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.4920.0% in the aggregate of the shares voting power of Common Stock outstanding the stock of the Company or 20.0% of an economic position in the Company at such timetime (such percentage, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership“Ownership Limit”); provided, as determined in accordance with Rule 13d-3 of the Exchange Acthowever, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock securities to be sold to the extent such personsthe members of the Sherborne Group, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons 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;
(iv) except in a transaction approved by the Board or an open market broker sale transaction, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the any securities of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Sherborne Group Shareholders or any of their Affiliates to any Third Party (as defined below) that would knowingly result in such Third Party, together with its Affiliates and Associates, to your knowledge after reasonable inquiry owning, controlling or otherwise having any beneficial or other ownership interest in more than the aggregate 5% in the aggregate or more of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(v) effect except in a transaction approved by the Board or an open market broker sale transaction, sell, transfer, assign or convey, directly or indirectly, any securities of the Company to any person who to your knowledge after reasonable inquiry has previously initiated or participated in a proxy contest or other nomination or proposal campaign with respect to any public company (including the Company);
(vi) sell, transfer, assign or convey, directly or indirectly, any rights decoupled from the underlying securities held by any member of the Sherborne Group to any person;
(vii) make or submit, seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements make or understandings whether or not legally enforceable with any person), offer or propose to effectsubmit, cause or participate in, or in any way knowingly assist or knowingly facilitate any other person to effect make or seek, submit or seek to make or submit to the Company any offer or propose to effect or participate in, proposal for any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public (or reasonably expected to become public) statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude Sherborne or any member of the Sherborne Group from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as other stockholders of the Company;
(viii) 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 any index fund, exchange traded fund, benchmark fund or broad basket of securities) 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;
(ix) (A) preclude call or seek to call any meeting of stockholders, including by written consent, (B) seek representation on the tender by any PW Group Shareholders Board, except as set forth herein, (C) seek the removal or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof election of any member of the Board or management, other than in accordance with any recommendation of the Board, (D) solicit consents from stockholders or otherwise act or seek for stockholders to act by written consent, other than in accordance with any recommendation of the Board, (E) conduct a referendum of stockholders, (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise; or (G) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing clause (G) shall not prevent Sherborne or any of the members of the Sherborne Group from (i) bringing litigation against the Company to enforce any provision of this Agreement, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against Sherborne or any of the members of the Sherborne Group in connection with this Agreement, (iii) exercising statutory appraisal rights or (iv) responding to or complying with validly issued legal process;
(x) make any proposal or request with respect to: (A) any change in the Board, including the number or term of directors or the filling of any vacancies on the Board other than as provided under Section 1 of this Agreement, (B) any change in the capitalization or dividend policy of the Company, (C) any change in the Company’s management, business or corporate structure, (D) any waiver, amendment or modification to the Amended and Restated Certificate of Incorporation or Second Amended and Restated Bylaws, (E) causing a class of securities of the Company into any tender or exchange offerto be delisted from, or vote by to cease to be authorized to be quoted on, any PW Group Shareholders securities exchange or XX Xxxx Group Shareholders or an Affiliate or Associate thereof (F) causing a class of any equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(xi) make any public (or reasonably expected to become 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) make any public (or reasonably expected to become public) disclosure, announcement or statement to take any of the foregoing actions or initiate or enter into any discussions, 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;
(xiii) other than with respect to the Sherborne Designee as not prohibited under (and in accordance with) the Company Policies, initiate discussions with any employee at the Company other than the Chief Executive Officer, the Chief Financial Officer and the Chief Legal Officer as set forth in the proviso set forth below regarding permitted private communications;
(xiv) enter into any negotiations, agreements, contracts, arrangements or understandings, whether oral or written, formal or informal, including, without limitation, those related to pecuniary matters, compensation, consulting services, nomination obligations to act for the benefit of or report to the Sherborne Group or otherwise containing any restrictions or requirements on any such individual of any nature, featuring any voting or action commitments as to any matter or otherwise relating, directly or indirectly, to the Company, such individual’s relationship or potential relationship with the Company or the Sherborne Group’s investment or involvement in the Company, other than ordinary course agreements between members of the Sherborne Group and their investors (collectively, “Arrangements”);
(xv) enter into any negotiations, agreements, contracts, arrangements or understandings, whether oral or written, formal or informal, with any Third Party to take any action that Sherborne or any of the members of the Sherborne Group are prohibited from taking pursuant to this Section 2(a); or
(xvi) request, directly or indirectly, any amendment or waiver of the foregoing; provided, that the restrictions in this Section 2(a) shall not be deemed to prohibit the Sherborne Group (or the Sherborne Designee) from communicating privately with the Company’s Chief Executive Officer, Chief Financial Officer, Chief Legal Officer, the Chair of the Board, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) During the Covered Period, Sherborne shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any of the members of the Sherborne Group, to be present for quorum purposes and to be voted, at the Company’s annual and special meetings of stockholders and at any adjournments or postponements thereof, and vote in favor of all directors nominated by the Board for election at any such meeting (including the Sherborne Designee, as applicable), against any directors not nominated and recommended for election by the Board and in accordance with the Board’s recommendations with respect to any proposals that may be the subject of stockholder action at such meeting; provided, however, that Sherborne and any of the members of the Sherborne Group shall be permitted to vote in their sole discretion on any proposal with respect to an Extraordinary Transaction, .
(Bc) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering Nothing in this Agreement shall be deemed to purchase securities or assets of limit the Company if exercise in good faith by the sale Sherborne Designee of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company person’s fiduciary duties solely in the event the Company enters into negotiations with such person’s capacity as a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock director of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);.
Appears in 2 contracts
Samples: Nomination and Cooperation Agreement (Sherborne Investors LP), Nomination and Cooperation Agreement (Navient Corp)
Standstill. Each of the members of the Air T Group agrees that, during the Air T Standstill Period, and each of the members of the Biglari Group agrees that, during the Biglari Standstill Period, he or it will not, and he or it will cause each of such person’s Affiliates or agents or other persons acting on his or its behalf not to, and will use commercially reasonable efforts to cause his or its respective Associates not to:
(a) Each submit, or otherwise induce or encourage any other 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, and will not nominate any candidate for election to the Board or oppose the directors nominated by the Board;
(b) 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 PW 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 (i) with respect to the members of the Air T Group/XX Xxxx , solely with other members of the Air T Group Shareholders and/or one or more Affiliates of a member of the Air T Group, (ii) with respect to the members of the Biglari Group, solely on behalf with other members of itself the Biglari Group and/or one or more Affiliates of a member of the Biglari Group or (iii) to the extent such a group may be deemed to result between the members of the Air T Group and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor Company or any of its Affiliates or Associates will, between the members of the Biglari Group and it will cause each the Company or any of its Affiliates and Associates not toAffiliates, directly or indirectly in any mannereach case, alone or in concert with others:as a result of this Agreement;
(ic) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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) (), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board (including Swenson, Berning, Biglari and Xxxxxx) at any shareholder meeting) or make or be the proponent 2016 Annual Meeting of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Shareholders;
(iid) formseek, join, encourage, influence, advise or in any way participate in any “group” (capacity other than as such term is defined in Section 13(d)(3) a member of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a acting majority of the Board, excluding to call, or to request the Nominees and their Replacementscall of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce or encourage any other person to initiate such proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(ve) in any capacity other than as a member of the acting majority of the Board, effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the provisions of Section 4(c) or this Section 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Air T Group or the Biglari Group, as the case may be, or their respective securities (eachAffiliates or Associates) to obtain any waiver, an “Extraordinary Transaction”)consent under, or make any public statement amendment of, any provision of this Agreement;
(g) enter into any arrangements, understandings or 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 engage, in any of the foregoing; or
(h) take or cause or induce others to take any action inconsistent with respect to an Extraordinary Transaction; provided, however, any of the foregoing. It is understood and agreed that this clause Agreement shall not (A) preclude be deemed to prohibit Xxxxxxx, Xxxxxxx or Xxxxxx from engaging in any lawful act in his capacity as a director of the tender by any PW Group Shareholders Company, except that none of Xxxxxxx, Biglari or XX Xxxx Group Shareholders Xxxxxx may act as a director to call, or an Affiliate or an Associate thereof to request the call of, a special meeting of any securities the shareholders of the Company into any tender or exchange offer, or vote unless such special meeting is being called by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days majority of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);.
Appears in 2 contracts
Samples: Standstill Agreement (Biglari Capital Corp.), Standstill Agreement (Air T Inc)
Standstill. (a) Each member of the PW Group/XX Xxxx ValueAct Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (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 ValueAct Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “ValueAct Affiliates,” provided that no portfolio company of the ValueAct Group shall be deemed a “ValueAct Affiliate” so long as such portfolio company (A) has not discussed the Company or its business with the ValueAct Group or the ValueAct Designee, (B) has not received from the ValueAct Group or the ValueAct Designee information concerning the Company or its business, and it will cause each (C) is not acting at the request of, in coordination with or on behalf of its Affiliates and Associates the ValueAct Group or the ValueAct Designee), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not ValueAct Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW ValueAct Group Shareholders (together with their Affiliates and Associates and the ValueAct Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.4913.75% in the aggregate of the shares of Common Stock outstanding at such time; provided that provided, that, nothing herein will require Common Stock to be sold to the extent such personsthe ValueAct Group and the ValueAct Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock;
(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 of the Company held by the PW Group/XX Xxxx ValueAct Group Shareholders or any of their Affiliates ValueAct Affiliate to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company or (D) ValueAct Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party (as defined below) Party”), that would knowingly result in such Third Party, together with its Affiliates affiliates and Associatesassociates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 109.9% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any except in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW the ValueAct Group Shareholders or XX Xxxx Group Shareholders or an a ValueAct Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW the ValueAct Group Shareholders or XX Xxxx Group Shareholders or an a ValueAct Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction;
(vi) 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 securities of the Company;
(vii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation, on or nominate any PW Group Shareholders 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 XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent, (E) conduct a referendum of stockholders, or Associate thereof from offering (F) make a request for any stockholder list or other Company books and records, whether pursuant to purchase securities Section 220 of the DGCL or assets otherwise;
(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Restated Certificate of Incorporation or Second Amended and Restated By-Laws or other actions that may impede or facilitate the acquisition of control of the Company if the sale by any person; (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event 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 enters to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) disparage or cause to be disparaged the Company or affiliates thereof or any of its current or former officers or directors;
(x) 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 or any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xi) enter into negotiations any discussions negotiations, agreements, or understandings with a any Third Party regarding a proposal 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
(xii) 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 ValueAct Group or its directors, officers, partners, employees, members or agents (acting 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 such communications.
(b) Each member of the ValueAct Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any ValueAct Affiliate, to be acquired by such Third Partypresent for quorum purposes and to be voted, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of at the Company’s 2013 annual and special stockholder meeting and at any adjournments or postponements thereof, and further agrees that at the 2013 annual stockholder meeting they shall vote in favor of (i) all directors nominated by the Board for election at such meetings (including the ValueAct Designee as applicable) and (ii) in accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meetings; provided, thathowever, that with respect to a proposal related to an Extraordinary Transaction, the ValueAct Group and the ValueAct Affiliates may vote their shares of Common Stock beneficially owned, directly or indirectly, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more discretion of the Nominees ValueAct Group or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group ShareholdersValueAct Affiliate, as applicable, .
(c) Nothing in this Section 2 shall have given written notice to limit any actions that may be taken by the ValueAct Designee acting solely as a director of the Company of its election to act consistent with his fiduciary duties as a potential bidder for director of the Company within 10 days of (it being understood and agreed that the Board’s decision ValueAct Group and the ValueAct Affiliates shall not seek to initiate do indirectly through the sale process or negotiate ValueAct Designee anything that would be prohibited if done by the Third Party acquisition proposal ValueAct Group or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the CompanyValueAct Affiliates);.
Appears in 2 contracts
Samples: Nomination and Standstill Agreement, Nomination and Standstill Agreement (Cbre Group, Inc.)
Standstill. (a) Each member of the PW Group/XX Xxxx Blue Clay Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from during the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth unless specifically requested in this Agreementwriting by the Company, neither acting through a resolution of a majority of the Company’s directors not including the Blue Clay Designee, it nor any shall not, and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “Blue Clay Affiliates,” provided that no portfolio company of the Blue Clay Group shall be deemed a “Blue Clay Affiliate” so long as such portfolio company (i) has not received from the Blue Clay Group or the Blue Clay Designee information concerning the Company or its business, and it will cause each (ii) is not acting at the request of, in coordination with or on behalf of its Affiliates and Associates the Blue Clay Group or the Blue Clay Designee), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not Blue Clay Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Blue Clay Group Shareholders (together with their Affiliates and Associates and the Blue Clay Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.4912.9% 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 such personsthe Blue Clay Group and the Blue Clay Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common StockStock so long as the beneficial or other ownership interest of the Blue Clay Group and the Blue Clay 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, 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/XX Xxxx Blue Clay Group Shareholders or any of their Affiliates Blue Clay 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 Blue Clay Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party (as defined belowParty”) that would knowingly result in such Third Party, together with its Affiliates affiliates and Associatesassociates, owning, controlling or otherwise having any beneficial or other ownership interest in of more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 109.9% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any except in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW the Blue Clay Group Shareholders or XX Xxxx Group Shareholders or an a Blue Clay Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW the Blue Clay Group Shareholders or XX Xxxx Group Shareholders or an a Blue Clay Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, Transaction or (B) prohibit any PW member of the Blue Clay Group Shareholders or XX Xxxx Group Shareholders or a Blue Clay Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, process or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in if a member of the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer Company’s management has publicly offered to acquire all or substantially all of the Common Stock equity securities of the Company in a “take private” transaction subject to Rule 13e-3 promulgated under the Exchange Act;
(vi) 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 securities of the Company; provided;
(vii) (A) call or seek to call, thatalone or in concert with others, in the case any meeting of shareholders, including by written action, (B) and seek representation on, or nominate any candidate to, the Board, except as set forth herein, (C) above, seek the PW Group Shareholders or, in the event that one or more removal of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days any member of the Board’s decision , (D) solicit consents from shareholders or otherwise act or seek to initiate act by written action, (E) conduct a referendum of shareholders or (F) make a request for any shareholder list or other Company books and records, whether pursuant to Section 302A.461 of the sale process MBCA or negotiate the Third Party acquisition otherwise;
(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one Board or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) except as necessary to enforce the provisions of this Agreement, commence or threaten any litigation against the Company, or commence or threaten, derivatively on behalf of the shareholders, any litigation against any of the Company’s officers and directors;
(x) 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;
(xi) enter into any discussions, 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
(xii) 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 Blue Clay Group or its directors, officers, partners, employees, members or agents (acting 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 such communications.
(b) At each annual shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period, each member of the Blue Clay 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 and further agrees that it shall make commercially reasonable efforts to vote in favor of the Company Slate. At any special shareholders’ meeting (or adjournments or postponements thereof) during the Covered Period, each member of the Blue Clay 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 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 Blue Clay 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 Blue Clay Group and the Blue Clay Affiliates shall not seek to do indirectly through the Blue Clay Designee anything that would be prohibited if done by the Blue Clay Group or the Blue Clay Affiliates);.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Appointment and Nomination Agreement (Blue Clay Capital Management, LLC), Appointment and Nomination Agreement (Famous Daves of America Inc)
Standstill. (a) Each Except in connection with the Proposed Transaction as contemplated in the Exclusivity Agreement, until the expiration of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that one year from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreementhereof, neither it party nor any of its Affiliates controlled affiliates shall, without the prior consent or Associates will, and it will cause each invitation of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate inthe Board of Directors of the other party, directly or indirectly, (a) acquire or otherwise become the beneficial owner of any voting securities or rights to acquire any voting securities of the other party; (b) commence any tender or exchange offer for any voting securities of the other party; (c) participate in any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Securities and Exchange ActCommission) or consents to vote, vote or seek to advise, encourage or influence any person otherwise with respect to the any voting of any securities of the Company or other party; (d) make any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors public announcement with respect to any proposal for or offer of any extraordinary transaction involving the Company other party or any of its securities or assets; (as such terms are defined e) otherwise act, alone or used under in concert with others, to seek to control or influence the Exchange Act) (other than a “solicitation” management, Board of Directors or acting as a “participant” in support of all policies of the nominees other party; (f) take any action which might cause or require it or the other party to make a public announcement regarding any of the Board at any shareholder meeting) types of matters set forth in this paragraph; or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(iig) form, join, encourage, influence, advise join or in any way participate in any a “group” (as such term is defined in Section 13(d)(3) of under the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereofAct) with respect to the other party. Each party agrees during such period not to request the other party (or its Representatives), directly or indirectly, to amend or waive any securities provision of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities this paragraph (including this sentence). The provisions of the Company in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement this paragraph shall not apply with respect to actions regarding any person that acquires any of the voting thereofsecurities, except as expressly set forth in this Agreement;
businesses or assets of either party. This paragraph 8 shall terminate with respect to a party if a person (iiiother than the other party or an affiliate of the other party) acquireacquires, offer or propose enters an agreement to acquire, or agree publicly proposes to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions merger or otherwise, any more than 50% of the voting securities of the Company or any rights decoupled from the underlying securities of the Company first party (that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwiseis, the securities of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates first party that are entitled generally to any Third Party (as defined below) 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 in more than 5% vote in the aggregate annual election of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”directors), or make any public statement with respect otherwise acquires, or enters into an agreement to an Extraordinary Transaction; providedacquire, howeveror publicly proposes to acquire, that this clause shall not (A) preclude the tender by any PW Group Shareholders ability to control the management or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities policies of the Company into any tender or exchange offerfirst party, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer an agreement to acquire all or substantially all of the Common Stock assets of the Company; providedfirst party, that, or commences a solicitation of proxies referred to in clause (c) above. This paragraph 8 shall not restrict either party from engaging in any lawful acquisition of shares of common stock of the other party on the Nasdaq Stock Market or the New York Stock Exchange in the case ordinary course of business if such acquiring party, together with its subsidiaries and persons acting in concert with such party or its subsidiaries do not beneficially own (Bas such term is used under the Securities Exchange Act of 1934, as amended) and (C) above, the PW Group Shareholders or, in the event that one 2.5% or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days outstanding common stock of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);party.
Appears in 2 contracts
Samples: Non Disclosure Agreement (Perot Systems Corp), Non Disclosure Agreement (Dell Inc)
Standstill. (a) Each Member of the PW Group/XX Xxxx Xxxxxxxxxxx Group Shareholders solely on behalf agrees that, during the Covered Period (unless specifically requested in writing by the Company, acting through a resolution of itself and its respective Affiliates and Associates hereby severally and a majority of the Company’s directors not jointly agrees that from including the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Xxxxxxxxxxx Designees), it shall not, and shall cause each Xxxxxxxxxxx Affiliate not to (except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to), directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange ActSEC) or consents to vote, or seek to advise, encourage or influence (including, for the avoidance of doubt, by encouraging or participating in any “withhold” or similar campaign) any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for with respect to the election or removal of individuals to the Board directors or to approve shareholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or make, be the proponent of or cause any person to initiate any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes Act) with any person who is not identified on Schedule A as a Member of this Agreement, the Xxxxxxxxxxx Group or a Xxxxxxxxxxx Affiliate (any such groupperson, a “Section 13(d) GroupThird Party”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW the Xxxxxxxxxxx Group Shareholders or XX Xxxx Group Shareholders or an a Xxxxxxxxxxx Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary TransactionTransaction approved by the Board;
(iv) (A) call, seek to call or request the call of any meeting of shareholders, including by written consent, (B) prohibit seek representation on, or nominate any PW Group Shareholders candidate to, the Board, except as specifically set forth in Section 1, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent, (E) conduct a referendum of shareholders, or Associate thereof from offering (F) make a request for any shareholder list or other Company books and records, whether pursuant to purchase securities the BCL or assets otherwise;
(v) 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 to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or By-Laws, or other actions that may impede or facilitate the acquisition of control of the Company if the sale by any person, (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event 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 enters to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vi) 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;
(vii) enter into negotiations any negotiations, agreements or understandings with a any Third Party regarding a 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
(viii) make or in any way advance any request or proposal to amend, modify or waive any provision of this Agreement other than in a nonpublic and confidential manner and which nonpublic and confidential request would not reasonably be acquired expected by such Third Partythe Company to require public disclosure by any party hereto.
(b) Nothing in this Section 2 shall limit any Xxxxxxxxxxx Designee, or during the term of any service as a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock director of the Company, from taking actions solely in such Xxxxxxxxxxx Designee’s capacity 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; provided, that, in that the case Xxxxxxxxxxx Designee taking any such actions does not have an actual conflict of (Binterest) and (C) above, complying with applicable fiduciary duties so long as such actions are consistent with such Xxxxxxxxxxx Designee’s obligations and representations under the PW Group Shareholders or, in the event that one or more other Sections of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);this Agreement.
Appears in 2 contracts
Samples: Nomination and Standstill Agreement (Coppersmith Capital Management, LLC), Nomination and Standstill Agreement (Conmed Corp)
Standstill. (a) Each of the PW Group/XX Xxxx members of the Xxxxxxx Group Shareholders solely on behalf of itself agrees that, during the Standstill Period and its respective Affiliates provided that Company has complied and Associates hereby severally and not jointly agrees that from is complying with the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”)Principal Obligations, except as expressly set forth in this Agreement, neither he or it nor any of its Affiliates or Associates willwill not, and he or it will cause each of such person’s Affiliates or agents or other persons acting on his or its Affiliates behalf not to, and will cause his or its respective Associates not to, directly or indirectly in any manner, alone or in concert with others:
(ia) submit 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, or nominate any candidate for election to the Board, other than as expressly permitted by this Agreement ;
(b) 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 solely with other members of the Xxxxxxx Group or one or more Affiliates of a member of the Xxxxxxx Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(c) solicit proxies or written consents of stockholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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) (Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent 2010 and 2011 Annual Meetings of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Stockholders;
(iid) formseek, join, encourage, influence, advise or in any way participate in any “group” (capacity other than as such term is defined in Section 13(d)(3) a member of the Exchange Act for purposes of this AgreementBoard, any such groupto call, or to request the call of, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some special meeting of the persons identified on the Group 13Ds (as defined below) as stockholders of the date hereof and their Affiliates and AssociatesCompany, but not including or seek to make, or make, a stockholder proposal at any other entities or persons not identified on the Group 13Ds as meeting of the date hereof) with respect to any securities 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 any manner agree, attemptconcert with others, seek to control or propose to deposit any securities influence the governance or policies 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 thereofCompany, except as expressly set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(ve) effect or seek to effect effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of their respective the media or securities (eachanalyst) of, an “Extraordinary Transaction”)any intent, purpose, plan or proposal to obtain any waiver, or make consent under, or any amendment of, any of the provisions of Section 4(d) or this Section 5, or otherwise seek (in any manner that would require public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender disclosure by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into members of the Xxxxxxx Group or their Affiliates or Associates) to obtain any tender or exchange offerwaiver, consent under, or vote by amendment of, any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof provision of this Agreement;
(g) publicly disparage any securities member of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders Board or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock management of the Company; provided;
(h) enter into any arrangements, thatunderstandings 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 the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more any of the Nominees foregoing; or
(i) take or their Replacements are officers, directors cause or employees of, induce or Disclosing Nominees (as defined below) to, assist others to take any action inconsistent with any of the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, foregoing. It is understood and agreed that this Agreement shall have given written notice not be deemed to the Company of its election to prohibit Xxxxxxx from engaging in any lawful act in his capacity as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs director of the Company);.
Appears in 2 contracts
Samples: Board Member Agreement (SRB Management, L.P.), Board Representation Agreement (Alloy Inc)
Standstill. (a) Each of the PW Group/XX Xxxx members of the Greenway Group Shareholders solely on behalf of itself agrees that, during the Standstill Period, and provided that Company has complied and is complying with its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in obligations under this Agreement, neither he or it nor any of its Affiliates or Associates willwill not, and he or it will cause each of his or its Affiliates or agents or other persons acting on his or its behalf not to, and will cause his or its respective Associates not to, directly or indirectly in any manner, alone or in concert with others:
(ia) 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, other than as expressly permitted by this Agreement;
(b) 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 solely with other members of the Greenway Group or one or more Affiliates of a member of the Greenway Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(c) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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) (Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)2010 Annual Meeting and 2011 Annual Meeting;
(iid) formseek, join, encourage, influence, advise or in any way participate in any “group” (capacity other than as such term is defined in Section 13(d)(3) a member of the Exchange Act for purposes of this AgreementBoard, any such groupto call, or to request the call of, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some special meeting of the persons identified on the Group 13Ds (as defined below) as shareholders of the date hereof and their Affiliates and AssociatesCompany, but not including or seek to make, or make, a shareholder proposal at any other entities or persons not identified on the Group 13Ds as meeting of the date hereof) with respect to any securities shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in any manner agree, attemptconcert with others, seek to control or propose to deposit any securities influence the governance or policies 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 thereofCompany, except as expressly set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(ve) effect or seek to effect effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of their respective the media or securities (eachanalyst) of, an “Extraordinary Transaction”)any intent, purpose, plan or proposal to obtain any waiver, or make consent under, or any amendment of, any of the provisions of Section 4(d) or this Section 5, or otherwise seek (in any manner that would require public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender disclosure by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities members of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Greenway Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates or Associates) to obtain any materialwaiver, non-public information concerning the business consent under, or affairs amendment of, any provision of this Agreement;
(g) 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 Company);foregoing; or
(h) take or cause or induce or assist others to take any action inconsistent with any of the foregoing.
Appears in 2 contracts
Samples: Nomination Agreement (Dusa Pharmaceuticals Inc), Board Nomination Agreement (SRB Management, L.P.)
Standstill. (a) Each member of the PW Group/XX Xxxx L&B and Orange Group Shareholders solely on behalf agrees that, during the Covered Period (unless specifically requested in writing by the Company, acting through a resolution of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until Board approved by a majority of the termination of this Agreement in accordance with Section 5 (the “Covered Period”Company’s directors), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) and it will cause each of its Affiliates other Person listed as a Participant in the Preliminary Proxy Statement (collectively and Associates individually, the “L&B and Orange Affiliates”), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(a) (i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or (ii) seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, or (iii) 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) (), other than (A) a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meetingstockholder meeting or (B) voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or (iv) make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under of the Exchange Act or otherwise);
(iib) (i) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof who are not L&B and their Orange Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) 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 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 expressly set forth in this Agreement, other than, with respect to clauses (ii) and (iii), a voting trust, arrangement or similar agreement solely among L&B and Orange Affiliates;
(iiic) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW L&B and Orange Group Shareholders (together with their Affiliates the L&B and Associates and Orange Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over 5% or more than 17.49% in the aggregate of any class of securities of the shares of Common Stock Company outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(ivd) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell, sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the PW Group/XX Xxxx L&B and Orange Group Shareholders or any of their Affiliates L&B and Orange Affiliate to any person or entity not (i) a party to this agreement, (ii) a member of the Board, (iii) an officer of the Company or (iv) a L&B and Orange Affiliate (each, a “Third Party (as defined belowParty”) that would knowingly result in such Third Party, together with its Affiliates affiliates and Associatesassociates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 104.9% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any except in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(ve) (i) 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)effect, offer or propose to effect, cause or participate in, or in any way assist assist, facilitate or facilitate encourage any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”)) other than an Extraordinary Transaction approved by the Board; provided that nothing herein this paragraph (d) shall preclude or prohibit any Person from tendering into a tender or exchange offer or voting his securities, or (ii) make any public statement with respect to an Extraordinary Transaction;
(f) (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, except as expressly set forth herein, (iii) seek the removal of any member of the Board, (iv) solicit consents from stockholders or otherwise act or seek to act by written consent, conduct a referendum of stockholders, or (v) make a request for any stockholder list or other Company books and records, whether pursuant to Rule 14d-5 or Rule 14a-7 of the Exchange Act, Section 2-512 or Section 2-513 of the MGCL, or otherwise;
(g) take any public action in support of or make any public proposal or request that constitutes or relates to: (i) 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; provided(ii) any material change in the capitalization, howeverstock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company; (iii) any other material change in the Company’s management, business or corporate structure; (iv) seeking to have the Company waive or make amendments or modifications to the Company’s charter or Bylaws, or other actions that this clause shall not (A) preclude may impede or facilitate the tender acquisition of control of the Company by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof person; (v) causing a class of any securities of the Company into any tender or exchange offerto be delisted from, or vote by to cease to be authorized to be quoted on, any PW Group Shareholders securities exchange; or XX Xxxx Group Shareholders or an Affiliate or Associate thereof (vi) causing a class of any securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(h) 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;
(i) enter into any discussions, negotiations, agreements, or understandings with any Third Party with respect to any Extraordinary Transactionof 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;
(j) request, directly or indirectly, any amendment or waiver of the foregoing in a manner in which such request would require public disclosure pursuant to applicable law, rule or regulation; or
(k) authorize, commit to or agree in writing or otherwise to do anything prohibited in this Section 4. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 4 shall not be deemed to prohibit the L&B and Orange Group or its directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors or officers so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications. The provisions set forth in this Section 4 are effective as of the date hereof and shall remain in full force and effect for the period (the “Covered Period”) commencing on the date hereof and ending on the earlier of (i) July 15, 2016, (Bii) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering the date that is 30 days prior to purchase securities or assets the first day of the earliest advance notice window for nominating individuals for election to the Board or proposing other business to be considered by the Company’s stockholders at the 2016 annual meeting of stockholders; and (iii) the date that is 14 days after the date, if any, that the L&B and Orange Group provides written notice in good faith to the Company that the Company has materially breached any of its commitments or obligations under this Agreement (specifying the relevant acts in such written notice), except that if such material breach can be cured, the sale Company shall have 14 days after the date of such securities or assets is initiated by the Company through an open bidding process, or written notice within which to cure its material breach and this clause (Ciii) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company shall not apply in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);cure.
Appears in 1 contract
Samples: Cooperation Agreement (Macerich Co)
Standstill. (ai) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly The Purchaser agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”)that, except as expressly set forth in otherwise permitted under this Agreement, neither during the period commencing on the initial Forward Closing Date and ending on the earlier of (i) December 31, 2024 and (ii) entry into a definitive agreement for a transaction that, if consummated, would result in a Change in Control, it nor any of its Affiliates or Associates willshall not, and it will shall cause each of its Affiliates and Associates affiliates not to, directly or indirectly indirectly, in any manner, alone or in concert with othersothers take any of the following actions without the prior consent of the Company:
(i1) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person Person with respect to (x) the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board of Directors or (y) the approval of any proposals submitted to approve shareholder a vote of the stockholders of the Company if the Board of Directors has recommended against such proposals, 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) (other than a “solicitation” or acting as a “participant” in support for the election of all of directors with respect to the nominees of Company, if the Board at any shareholder meeting) of Directors has recommended against such slate, or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii2) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but Persons who are not including any other entities or persons not identified on the Group 13Ds as of the date hereof) its affiliates with respect to any securities of the Company 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 set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(v3) 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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person Person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of material all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender vote by the Purchaser or any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of its affiliates of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any voting securities of the Company with respect to any Extraordinary TransactionTransaction in its discretion;
(4) (A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) prohibit seek representation on the Board of Directors, except as expressly set forth herein, (C) publicly seek the removal of any PW Group Shareholders member of the Board of Directors, (D) solicit consents from stockholders or XX Xxxx Group Shareholders otherwise act or Affiliate or Associate thereof from offering seek to purchase securities or assets act by written consent with respect to the Company, (E) conduct a referendum of stockholders of the Company if or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the sale DGCL or otherwise;
(5) take any action in support of such securities or assets is initiated by make any proposal or request that constitutes: (A) controlling or changing the Company through an open bidding processBoard of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, or (C) prohibit any PW Group Shareholders other material change in the Company’s management, business or XX Xxxx Group Shareholders corporate structure (except pursuant to any action or Affiliate transaction permitted by Section 5(c)(3));
(6) (A) seeking to have the Company waive or Associate thereof from offering make amendments or modifications to purchase the Company’s certificate of incorporation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any Person, (B) causing a class of securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Partydelisted from, or a Third Party commences a hostile tender offer to acquire all cease to be authorized to be quoted on, any securities exchange; or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) abovecausing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(7) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the PW Group Shareholders Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement; or
(8) enter into any discussions, in the event that one negotiations, agreements or more understandings with any third party with respect to any of the Nominees or their Replacements are officers, directors or employees offoregoing, or Disclosing Nominees 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.
(as defined belowii) toNotwithstanding the foregoing provisions of Section 5(c) or anything in this Agreement to the contrary, the XX Xxxx Group ShareholdersPurchaser and its affiliates shall not be restricted from (i) participating in rights or securities offerings conducted by the Company, (ii) receiving stock dividends or similar distributions and payments made by the XX Xxxx Group ShareholdersCompany, as applicable(iii) disposing of Class A Shares by operation of a statutory amalgamation, shall have given written notice to statutory arrangement or other statutory procedure involving the Company of its election to act as a potential bidder for the Company within 10 days Company, (iv) any exercise of the Board’s decision to initiate the sale process Warrant or negotiate the Third Party acquisition proposal other securities acquired not in contravention of this Section 5(c) or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, (v) acquiring Class A Shares in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);open market purchases.
Appears in 1 contract
Standstill. (a) Each BRS agrees that, until the expiration of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that two years from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither without prior written invitation (on an unsolicited basis) of DLCH's Board of Directors, it nor and its affiliates will not (i) in any manner acquire, agree to acquire or make any proposal or offer or otherwise seek to acquire, directly or indirectly, any securities (or rights in respect thereof), assets or property of DLCH or any of its Affiliates subsidiaries or Associates willof any successor thereto or person in control thereof, and it will cause each whether such agreements or proposals or offers are made with or to DLCH or any of its Affiliates and Associates not tosubsidiaries (or a successor thereto or person in control thereof) or a third party; (ii) enter into or agree, offer, seek or propose to enter into or otherwise be involved in or part of, directly or indirectly in indirectly, any mannermerger, alone acquisition transaction or in concert with others:
other business combination relating to DLCH or any of its subsidiaries or any of their respective assets; (iiii) make, engage in, or in any way participate in, directly or indirectly, any “and "solicitation” " of proxies "proxies" (as such terms are used in the proxy rules of the SEC but without regard to Securities Exchange Act of 1934, as amended (the exclusion set forth in Rule 14a-1(l)(2)(iv) of the "Exchange Act")) or consents to vote, or seek to advise, encourage advise or influence any person with respect to the voting of, any voting securities of DLCH or any of its subsidiaries or of any securities of the Company successor thereto or any securities convertible or exchangeable into or exercisable for any such securities person in control thereof, (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(iiiv) form, join, encourage, influence, advise join or in any way participate in any “a "group” " (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereofAct) with respect to any voting securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders DLCH or any of their Affiliates to its subsidiaries or of any Third Party (as defined below) that would knowingly result successor thereto or person in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such timecontrol thereof; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(v) effect seek or seek propose, alone or in concert with others, to effect control or influence the management, Board of Directors or policies of DLCH; (including, without limitation, by entering vi) directly or indirectly enter into any discussions, negotiations, agreements arrangements 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 (except internal discussions and planning activities involving its Representatives) with respect to effect or seek, offer any of the foregoing activities or propose any of such activities to effect any other person (other than its Representatives); (vii) directly or participate inindirectly advise, encourage, assist, act as a financing source for or otherwise invest in any tender other person in connection with any of the foregoing; (viii) publicly disclose any intention, plan or exchange offerarrangement inconsistent with the foregoing. BRS also agrees that, mergerduring such two-year period, consolidationneither it nor any of its affiliates will: (i) request DLCH or its advisors, acquisitiondirectly or indirectly, scheme, arrangement, business combination, recapitalization, reorganization, sale to (1) amend or acquisition waive any provision of material assets, liquidation, dissolution this paragraph (including this sentence) or other extraordinary transaction involving the Company (2) otherwise consent to any action inconsistent with any provision of this paragraph (including this sentence); or (ii) take any initiative with respect to DLCH or any of its subsidiaries or joint ventures that could be reasonably be expected to require DLCH to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, (3) the possibility of a Transaction or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, similar transaction or (C4) prohibit the possibility of BRS or any PW Group Shareholders other person acquiring control of DLCH, whether by means of a business combination or XX Xxxx Group Shareholders otherwise. Additionally, BRS's Chief Executive Officer may contact DLCH's Chief Executive Officer for the purpose of expressing continuing or Affiliate renewed interest in a Transaction or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Partyany other business relationship, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, provided that, in the case of (B) and (C) aboveunless invited to do so by DLCH's Chief Executive Officer, the PW Group Shareholders or, in the event that one no offer or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions made that would require disclosure or formal consideration by DLCH or its Board of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);Directors.
Appears in 1 contract
Samples: Confidentiality Agreement (Jitney Jungle Stores Inc)
Standstill. (a) Each Except as provided in Section 6.1(b), and subject to Section 6.1(c), during the Standstill Period, none of Rhône or its Affiliates (including, for the avoidance of doubt, the Initial Holders) shall, without the prior written consent of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from Board (excluding the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Rhône Directors), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with othersindirectly:
(i) makeeffect or seek, engage in, offer or in propose (whether publicly or otherwise) to effect or announce any way intention to effect or cause or participate in, directly (A) any acquisition of Common Stock or indirectlyCommon Stock Equivalents if, as a result of any such acquisition, any of Rhône or its Affiliates (including, for the avoidance of doubt, the Initial Holders), individually or as part of a “group” (within the meaning of Section 13(d) of the Exchange Act), would become the beneficial owner (as defined in Rule 13(d) of the Exchange Act, except that the applicable Person(s) or group shall be deemed to have “beneficial ownership” of all shares that such Person(s) or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), of more than 34.99% of the total voting power of the Voting Stock, (B) any tender or exchange offer or merger involving the Company or (C) any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange ActSEC) or written consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities Voting Stock of the Company”) for the election of individuals , in each case in order to elect directors to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support any solicitation of all proxies to elect any Rhône Director who has not been nominated by the Board and/or elected by the stockholders of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwiseCompany);, or
(ii) form, join, encourage, influence, advise form or in any way participate in any “group” (as such term is defined in within the meaning of Section 13(d)(313(d) of the Exchange Act for purposes of this AgreementAct), any if such groupgroup would, as a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of result, become the persons identified on the Group 13Ds beneficial owner (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section Rule 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over except that such group shall be deemed to have “beneficial ownership” of all shares that such group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), of more than 17.4934.99% of the total voting power of the Voting Stock.
(b) Section 6.1(a) shall not prevent any direct or indirect acquisition (or participation in a “group” consisting solely of Rhône and any of its Affiliates with resulting beneficial ownership of more than 34.99% of the aggregate total voting power of the Voting Stock (determined in accordance with Section 6.1(a)(ii)) by Rhône or any of its Affiliates during the Standstill Period of (i) the Exchange Stock, (ii) the shares of Common Stock outstanding at such timeor Series A Preferred Stock issuable or issued upon the exercise of the Warrants or in connection with the exercise of any preemptive rights under Section 5.6 of the Warrant Agreement, and (Biii) with respect any Qualifying Employee Stock issued to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase Rhône Directors or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) sellany Common Stock or Common Stock Equivalents acquired pursuant to a Permitted Transaction.
(c) If at any time during the term of this Agreement (i) the Company fails to nominate any Rhône Director or to vote any of its proxies in favor of any Rhône Director, offer (ii) the stockholders of the Company fail to elect any Rhône Director, (iii) a “change in control”, “change of control” or agree similar concept shall have occurred under any indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of which the Company or any rights decoupled from the underlying securities held of its subsidiaries is a party or by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving which the Company or any of its subsidiaries or joint ventures or any of their respective securities properties may be bound (eachother than as a result of Rhône breaching its obligations under Section 6.1(a)) or (iv) Rhône and its Affiliates (including, an “Extraordinary Transaction”for the avoidance of doubt, the Initial Holders), individually or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not as part of a “group” (Awithin the meaning of Section 13(d) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offerExchange Act), or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities are the beneficial owner (as defined in Rule 13(d) of the Company with respect Exchange Act, except that the applicable Person(s) or group shall be deemed to any Extraordinary Transactionhave “beneficial ownership” of all shares that such Person(s) or group has the right to acquire, (Bwhether such right is exercisable immediately or only after the passage of time) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of less than 20% of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the outstanding Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as on a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidderfully-diluted basis, then such Nominees or Replacements the restrictions set forth in Section 6.1(a) shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);permanently terminate.
Appears in 1 contract
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that i. The AREX Parties agree that, from the date hereof until the termination of this Agreement in accordance with Section 5 until the Termination Date (the “Covered Standstill Period”), except as expressly set forth in this Agreementthe AREX Parties shall not, neither it nor any and shall cause each of its their respective Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, and it will cause each of its as amended (the “Exchange Act”)) (such Affiliates and Associates collectively, the “AREX Affiliates”, and each an “AREX Affiliate”) and each of the AREX Affiliates’ respective directors, officers, managers and employees not to, and will direct its and their respective consultants, agents, representatives, attorneys and advisors (to the extent acting on its or their behalf) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) a. make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person or entity with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities Securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) ; b. form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group or entities that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their are not AREX Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities Securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities Securities of the Company in any voting trust or similar arrangement, or subject any securities Securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) c. purchase or otherwise acquire, offer or offer, seek, propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group ownership (including any Section 13(dbeneficial ownership) Group), through swap or hedging transactions or otherwiseof the Securities of the Company, 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 the Company shares of Common Stock, or any rights decoupled from the underlying securities assets or liabilities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and AREX Parties owning, controlling or otherwise having any beneficial ownership or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.499.99% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided provided, however, that nothing herein will require any shares of Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, that the AREX Parties exceed the ownership limit applicable to such persons under this paragraph solely Section 2(a)(iii) as the result of a share repurchase or similar other Company action that reduces the number of outstanding shares of Common Stock;
(iv) d. other than through open market or block trade brokered sale transactions where the identity of the purchaser is unknown to the AREX Parties sell, offer or agree to sell, sell directly or indirectly, through swap or hedging transactions or otherwise, the securities Securities of the Company or any rights decoupled from the underlying securities Securities of the Company held by the PW Group/XX Xxxx Group Shareholders AREX Parties or any of their Affiliates AREX Affiliate to any person or entity not a (A) Party to this Agreement, (B) member of the Board, (C) officer of the Company or (D) AREX Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 104.99% in the aggregate of the shares of Common Stock outstanding at such time, except (X) 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 or (BY) any in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(v) e. 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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person or entity to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, division, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or assets (each, an “Extraordinary Transaction”), ) or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders the AREX Parties or an AREX Affiliate or an Associate thereof of any securities Securities of the Company into any tender or exchange offeroffer not initiated in breach of any standstill agreement to which the Company is a party;
f. except for settling any such transaction in existence as of April 15, 2020, engage in any transaction that would result in a “net short” position by effecting any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or vote by other similar right (including, without limitation, any PW Group Shareholders put or XX Xxxx Group Shareholders call option or an Affiliate or Associate thereof of any securities of the Company “swap” transaction) with respect to any Extraordinary Transactionsecurity (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 and the value from such a decline exceeds the aggregate value of the Securities of the Company beneficially owned by the AREX Parties;
g. (A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation on, or nominate any PW Group Shareholders 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 XX Xxxx Group Shareholders otherwise act or seek to act by written consent, (E) conduct a referendum of stockholders, (F) institute any litigation against the Company, its directors or its officers, except for initiating any legal proceeding solely to remedy a breach of or to enforce this Agreement or making counterclaims with respect to any legal proceeding initiated by or on behalf of the Company against the AREX Parties, or (G) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the Delaware General Corporation Law or otherwise;
h. take any action in support of or make any proposal or request (in each case, other than non-public communications with the Company that are not intended to, and would not reasonably be expected to, require any public disclosure of such communications) that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board or unfilled newly-created directorships; (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, including, without limitation, its capital allocation, business operations or strategies or its management or other personnel; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or the Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person or entity; (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;
i. Except for (A) the Schedule 13D Amendment (as defined below), (B) any amendment to the Schedule 13D regarding any action or transaction contemplated by this Agreement and (C) any amendment to the Schedule 13D required by Section 13(d) of the Exchange Act or any other applicable law, rule or regulation, take any action that would require the AREX Parties or any AREX Affiliate to file a statement of beneficial ownership report on Schedule 13D or Associate thereof from offering any amendment thereto with the SEC;
j. make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to purchase 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; k. enter into any substantive discussions, 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
l. request, directly or indirectly, any amendment or waiver of the foregoing other than non-public communications with the Company if the sale that are not intended to, and would not reasonably be expected to, require any public disclosure of such securities communications. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit or assets is initiated restrict the AREX Parties from: (A) communicating privately with the Board or the Company’s officers or advisors, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; (B) 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 to the extent having jurisdiction over any AREX Party or its Affiliates, provided, that a breach by the Company through an open bidding processAREX Parties of this Agreement is not the cause of the applicable law, rule, regulation or action; or (C) prohibit privately communicating to any PW Group Shareholders of their investors or XX Xxxx Group Shareholders potential investors under a customary non-disclosure agreement publicly available information regarding the Company, provided, that such communications are not otherwise reasonably expected to be publicly disclosed.
ii. During the Standstill Period, the AREX Parties shall cause all shares of Common Stock beneficially owned, directly or Affiliate indirectly, by it, to be present for quorum purposes at the Company’s annual and special stockholder meetings and at any adjournments or Associate thereof from offering to purchase postponements thereof, and shall vote such shares (i) in favor of all directors nominated by the securities Board for election at any such meeting and (ii) consistent with the recommendation of the Company in the event the Company enters into negotiations with Board on all other matters submitted to a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all vote of the Common Stock stockholders of the Company; provided, thathowever, in the case of (B) and (C) above, the PW Group Shareholders or, that in the event that one Institutional Shareholder Services, Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) both recommend otherwise than the Board with respect to any proposal submitted by the Company or more any of its stockholders (other than proposals relating to the election of directors, “say-on-pay” and the appointment of registered public accountants), each of the Nominees AREX Parties will be permitted in its discretion to vote in accordance with the recommendation of ISS and Glass Lewis or, if their recommendations differ from each other, in accordance with ISS’ or their Replacements are officersGlass Lewis’ recommendation; provided, directors or employees offurther, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days that each of the Board’s decision AREX Parties will be permitted to initiate the sale process vote in its discretion on any proposal in respect of an Extraordinary Transaction or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as any vote regarding a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);stockholders’ rights plan.
Appears in 1 contract
Samples: Cooperation Agreement (ZAGG Inc)
Standstill. (a) Each You agree that, for a period of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that twelve (12) months from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”)letter agreement, except as expressly set forth requested or consented to in this Agreementwriting by the Board of Directors of the Company, neither it nor any of its Affiliates or Associates willyou shall not, and it will you shall cause each of its your Affiliates and Associates not to, directly or indirectly indirectly, through one or more intermediaries or otherwise (including any of your Representatives or other persons acting on your behalf) (whether acting alone, as part of any Group (as defined below) or in concert with any other person), (i) acquire, agree to acquire or propose or offer to acquire (through Beneficial Ownership (as defined below) of or otherwise) (x) any Capital Stock (as defined below) of the Company or any of its subsidiaries, or (y) any Derivative Instrument (as defined below) (in any mannercase, whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing), (ii) seek or propose any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, dissolution, liquidation, restructuring, recapitalization or similar transaction of or involving the Company or any of its subsidiaries, (iii) make, in any way participate or engage in, or assist any person in connection with, any solicitation of proxies or consents (whether or not relating to the election or removal of directors) within the meaning of Rule 14a-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any of the Company’s securities, or seek to advise any person with respect to any such solicitation, or demand a copy of the stock ledger, list of stockholders or any other books or records of the Company, or initiate, support or intentionally encourage any stockholder proposal with respect to the Company that is not sponsored by the Board of Directors of the Company, including the nomination of, or withholding of votes for, directors, (iv) form, join or in any way participate in a Group with respect to any of the Company’s securities, (v) otherwise act, alone or in concert with others:
, to seek or propose to change, control or advise, in any manner, the management, Board of Directors, policies or affairs of the Company, (ivi) makehave any discussions or enter into any contract, engage inagreement, arrangement or understanding with, or advise, finance (or arrange financing for), assist or intentionally encourage, any other persons in connection with any way participate inof the matters restricted by, or to otherwise seek to circumvent the limitations of the provisions of, this Section 6(a), or (vii) make any publicly disclosed proposal or request regarding any of the foregoing, publicly disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing or seek (whether by legal action or otherwise) to take any action that would reasonably be expected to require the Company to make any public disclosure at the time such action is taken or request of the Board of Directors of the Company, directly or indirectly, that any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes provision of this AgreementSection 6(a) be amended, any such group, a “Section 13(d) Group”) with any persons waived or terminated (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds clauses (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Groupi)-(vii), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time“Standstill Restrictions”); provided, however, that the foregoing restriction Standstill Restrictions are not intended to and shall not apply prohibit or otherwise prevent (i) you or any of your Affiliates from making a confidential proposal to the Company or the Company’s Board of Directors in relation to a transaction, arrangement or activity that would otherwise be restricted by the Standstill Restrictions so long as such proposal is not known by you to be required to be publicly disclosed pursuant to applicable law (Aprior to mutual public disclosure regarding the Possible Transaction), (ii) passive investments by a pension or employee benefit plan or trust for your or your Affiliates’ employees so long as such investments are directed by independent trustees, administrators or employees to whom no Evaluation Material or Discussion Information has been disclosed, (iii) your or your Affiliates’ ownership of the shares of any mutual fund or similar financial institution that owns Company securities, (iv) ownership of securities of the Company by a person acquired by you (or any of your Affiliates) on the date such person first entered into an agreement to be acquired by you (or such Affiliate) or acquired after such person was acquired by you (or such affiliate) pursuant to an agreement requiring (but only to the extent requiring) such person to acquire such securities, which agreement was in effect on the date such person first entered into an agreement to be acquired by you (or such Affiliate) or (v) any transaction with other acquisition of the Company’s securities by you or your Affiliates that results in the ownership by you and your Affiliates of not more than 4% of the outstanding and issued equity securities of the Company.
(b) The Standstill Restrictions shall automatically terminate on the date on which (i) the Company enters into a Third Party who already has a Schedule 13G on file with the SEC definitive agreement with respect to any transaction involving (x) the sale of more than 50% of the consolidated assets of the Company and its ownership subsidiaries, taken as a whole, (y) a merger, consolidation, business combination, dissolution, liquidation, restructuring, recapitalization or similar transaction of Common Stock or involving the Company following which the stockholders of the Company immediately prior to the consummation of such transaction will hold less than 50% of the total combined voting power entitled to vote in the election of directors of the Company or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, successor holding company after giving effect to such transaction, own, control transaction or otherwise have beneficial ownership in (z) the sale or other transfer of securities having more than 1050% of the total combined voting power entitled to vote in the aggregate election of directors of the shares Company; (ii) a tender offer or exchange offer is commenced by a third person or Group (which does not involve any breach by you or your Affiliates of Common Stock outstanding at Section 6(a)) which, if consummated, would make such time, person or Group the Beneficial Owner of securities having more than 50% of the total combined voting power entitled to vote in the election of directors of the Company; (Biii) any transaction approved by written consent of person or Group commences a proxy solicitation in which the person or Group would, if successful, elect or acquire the ability to elect a majority of the Board, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock directors of the Company; providedor (iv) the Company redeems any rights under, thator modifies or agrees to modify, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more a shareholder rights plan to facilitate any of the Nominees actions described in (i) or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined belowii) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Companythis paragraph 6(b);.
Appears in 1 contract
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), it shall not, and shall cause each of its Affiliates or Associates (each as defined below) not to (except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to), directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Securities Exchange ActAct of 1934, as amended) or consents to vote, or seek to advise, encourage or influence any person person, other than any Affiliates of XX Xxxx, with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meetingstockholder meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement)) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise), other than as permitted hereby;
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some who are not Affiliates of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) XX Xxxx with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangementarrangement (including lending any securities of the Company to any person for the purpose of allowing such person to vote such securities in connection with any stockholder vote of the Company), or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except other than as expressly set forth in this Agreementpermitted hereby;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders XX Xxxx (together with their any Affiliates and Associates and of XX Xxxx) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.4919.9% 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 such personsXX Xxxx and any Affiliates of XX Xxxx, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock, as long as the beneficial or other ownership interest of XX Xxxx does not increase thereafter (except solely as a result of corporate actions taken by the Company);
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude restrict the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an any Affiliate or an Associate thereof of XX Xxxx of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or any Affiliate of XX Xxxx from privately (in a manner not reasonably expected to result in any public disclosure) advocating for such actions with the Board or Associate thereof prohibit XX Xxxx or any Affiliate of XX Xxxx from offering privately (in a manner not reasonably expected to purchase securities result in any public disclosure) engaging in discussions with any of their respective advisors and consultants regarding an Extraordinary Transaction or assets of the Company if the sale of participating in such securities transaction or assets is initiated any other actions approved by the Company through an open bidding processBoard, or (C) prohibit restrict the receipt of any PW Group Shareholders or consideration by XX Xxxx Group Shareholders or an Affiliate of XX Xxxx on the same basis as other stockholders of the Company in connection with an Extraordinary Transaction;
(v) (A) seek representation on or Associate thereof from offering nominate any candidate to purchase the Board, except as set forth herein, (B) seek or encourage the removal of any member of the Board, (C) conduct a referendum of stockholders, or (D) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the Delaware General Corporation Law (“DGCL”) or otherwise;
(vi) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any hedging, put or call option or “swap” transaction) with respect to any securities of the Company (other than a broad-based market basket or index or any cash-settled “swap” transaction);
(vii) take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board, except as set forth herein; (B) any material change in the event 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 enters into negotiations waive or make amendments or modifications to the Company’s restated certificate of incorporation, as amended, or (except as set forth herein) the Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, arrangement, plan or proposal with a Third Party regarding a 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; provided that this clause (viii) shall not prohibit XX Xxxx or any Affiliates of XX Xxxx from making any required filings or amendments to such filings under Section 13 of the Exchange Act;
(ix) (A) commence, encourage or support any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors, or (B) take any action challenging the validity or enforceability of any of the provisions of this Section 2(a) or publicly disclose, or cause or facilitate the public disclosure (including the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purposes, plan or proposal to be acquired by take any action challenging the validity or enforceability of any provisions of this Section 2(a), in any such Third Partycase other than (w) litigation to enforce the provisions of this Agreement, (x) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against XX Xxxx or any Affiliates of XX Xxxx, (y) the exercise of statutory appraisal, dissenters or similar rights under the DGCL and (z) bringing bona fide disputes that do not relate to the subject matter of this Agreement;
(x) take any action which could cause or require the Company or any Affiliate of the Company to make a Third Party commences public announcement regarding any of the foregoing (other than as permitted under subclauses (w), (x), (y) or (z) of clause (ix) above), or publicly seek or request permission to do any of the foregoing;
(xi) request, directly or indirectly, that the Company or the Board or any of their respective representatives amend or waive any provision of this Section 2(a), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any party; or
(xii) enter into any discussions, 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 cause 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. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit (i) XX Xxxx and its 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 such communications; (ii) any New Director from taking any actions that may be taken solely in his or her capacity as a hostile member of the Board in accordance with his or her fiduciary duties to all stockholders of the Company; or (iii) XX Xxxx or any Affiliate of XX Xxxx from making any factual statement as required by applicable legal process, subpoena, or legal requirement from any governmental authority with competent jurisdiction over the party from whom information is sought (so long as such request did not arise as a result of discretionary acts by XX Xxxx or any Affiliate of XX Xxxx). Notwithstanding anything to the contrary in this Agreement, if the Board (or any committee thereof) determines to initiate any process to consider an Extraordinary Transaction (including the engagement of an investment banker) that would involve a sale of 50% or more of the Company’s equity securities or assets (which transaction may be structured as a sale of assets, sale of equity interests, merger, consolidation, tender offer or other business combination), the Company will ensure that all members of the Board are promptly and, to acquire all the extent reasonably practicable, simultaneously notified of any such determination. Notwithstanding anything to the contrary in this Agreement, the Covered Period shall terminate automatically (and the provisions applicable during the Covered Period shall no longer be applicable) upon (a) any person (other than XX Xxxx or substantially all any Affiliates of XX Xxxx) becoming the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) or constructive economic owner (through swaps, options, similar securities or contracts or otherwise), directly or indirectly, of more than 50% of the Company’s then outstanding Common Stock, (b) the announcement of a tender or exchange offer by any third party (other than XX Xxxx or any Affiliates of XX Xxxx) for Common Stock of the Company that, if consummated, would make such person the beneficial owner (as defined in Section 13(d)(1) of the Exchange Act) of 50% or more of the Common Stock of the Company; provided, thator any rights or options to acquire such ownership, in including from a third party, but only if the case Board does not publicly recommend against such tender or exchange offer within ten business days of such announcement, or (Bc) and (C) above, the PW Group Shareholders or, in the event that Company entering into one or more of definitive agreements involving the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that by one or more third parties (other than XX Xxxx or any Affiliates of XX Xxxx) of more than 50% of the Nominees outstanding Common Stock of the Company or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs more than 50% of the Company’s consolidated total assets.
(b) For purposes of this Agreement:
(i) The terms “person” or “persons” shall mean any individual, corporation (including not-for-profit);, general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature.
Appears in 1 contract
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Until terminated pursuant to Section 5 (the “Covered Period”5(a), except as expressly set forth in this AgreementInvestor hereby agrees that, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in without the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 prior approval of the Board at (as defined in the Purchase Agreement), Investor shall not and shall not permit or cause any shareholder meetingAffiliate (as defined in the Purchase Agreement) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds Representative (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;Investor to:
(iiia) acting alone or with others, acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender merger, business combination or exchange offerin any other manner, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate any voting securities or other group (including any Section 13(d) Group), through swap direct or hedging transactions or otherwise, indirect rights to acquire any securities of the Company or any rights decoupled from the underlying securities subsidiary thereof, or of any successor to or person in control of the Company that would result in (A) with respect to the PW Group Shareholders (if after such acquisition Investor, together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipits Affiliates, as determined in accordance with Rule 13d-3 would own 10% or more of the Exchange Act, over more than 17.49% in the aggregate outstanding capital stock of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 Company or voting power of the Exchange ActCompany, over more than 17.49% in the aggregate or any assets of the shares Company or any subsidiary or division thereof or of Common Stock outstanding at any such timesuccessor or controlling person; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result any investment by Investor or an Affiliate of a share repurchase Investor in third-party mutual funds or other similar Company action passive investment vehicles that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the hold interests in securities of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to be taken into account for the purpose of this subparagraph (Aa);
(b) enter into any transaction with a Third Party who already has a Schedule 13G on file with the SEC voting agreements, trusts or similar arrangements with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result voting securities of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more Company other than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacementsas set forth herein;
(vc) 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 inmake, or in any way assist participate, directly or facilitate indirectly, in any other “solicitation” of “proxies” to vote (as such terms are used in the rules promulgated by the Securities and Exchange Commission (the “Commission”)), or seek to advise or influence any person or entity with respect to effect the voting by any third party of any voting securities of the Company;
(d) make any public announcement, directly or seekindirectly, with respect to, or submit a proposal for, or offer of (with or propose to effect or participate in, without conditions) any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries securities or joint ventures assets;
(e) form, join or in any way participate in a “group” as defined in Section 13(d)(3) (a “13D Group”) of their respective securities the Securities Exchange Act of 1934, as amended (each, an the “Extraordinary TransactionExchange Act”), or make in connection with any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender foregoing;
(f) act, alone or exchange offerin concert with others, to seek to control, advise, change or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of influence the Company with respect to any Extraordinary Transactionmanagement, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding processBoard, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Partygoverning instruments, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business policies or affairs of the Company);
(g) disclose any intention, plan or arrangement inconsistent with the foregoing;
(h) have any discussions or enter into any arrangement with, or advise, assist or encourage any other person in connection with any of the foregoing events;
(i) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any of the events described in clauses (a) through (h) above; or
(j) request the Company or any of its agents or Representatives, directly or indirectly, in any public manner, to amend or waive any of the foregoing provisions.
Appears in 1 contract
Samples: Standstill and Stock Restriction Agreement (Denali Therapeutics Inc.)
Standstill. (a) Each member of the PW Group/XX Xxxx ValueAct Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (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 ValueAct Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “ValueAct Affiliates,” provided that no portfolio company of the ValueAct Group shall be deemed a “ValueAct Affiliate” so long as such portfolio company (A) has not discussed any of the actions set forth in this subsection (a) with the ValueAct Group or the ValueAct Designee, (B) has not received from the ValueAct Group or the ValueAct Designee information concerning the Company or its business, and it will cause each (C) is not acting at the request of, in coordination with or on behalf of its Affiliates and Associates the ValueAct Group or the ValueAct Designee), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not ValueAct Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW ValueAct Group Shareholders (together with their Affiliates and Associates and the ValueAct Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.4912% in the aggregate of the shares of Common Stock outstanding at such time; provided that provided, that, nothing herein will require Common Stock to be sold to the extent such personsthe ValueAct Group and the ValueAct Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the PW Group/XX Xxxx ValueAct Group Shareholders or any of their Affiliates ValueAct Affiliate to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company or (D) ValueAct Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party (as defined below) Party”), that would knowingly result in such Third Party, together with its Affiliates affiliates and Associatesassociates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 104.9% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any except in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW the ValueAct Group Shareholders or XX Xxxx Group Shareholders or an a ValueAct Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW the ValueAct Group Shareholders or XX Xxxx Group Shareholders or an a ValueAct Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction;
(vi) 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 securities of the Company;
(vii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation, on or nominate any PW Group Shareholders 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 XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent, (E) conduct a referendum of stockholders, or Associate thereof from offering (F) make a request for any stockholder list or other Company books and records, whether pursuant to purchase securities Section 220 of the DGCL or assets otherwise;
(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company if the sale by any person; (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event 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 enters to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) disparage or cause to be disparaged the Company or Affiliates thereof, any of its current or former officers, or directors;
(x) 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;
(xi) enter into negotiations any substantive discussions, negotiations, agreements, or understandings with a any Third Party regarding a proposal 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
(xii) 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 ValueAct Group or its directors, officers, partners, employees, members or agents (acting 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 such communications.
(b) Each member of the ValueAct Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any ValueAct Affiliate, to be acquired 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 2015 annual stockholder meeting they shall vote in favor of (i) all directors nominated by the Board for election at such Third Party, or a Third Party commences a hostile tender offer meeting and (ii) in accordance with the Board’s recommendation with respect to acquire all or substantially any proposals for the election of directors that may be the subject of stockholder action at such meeting.
(c) The ValueAct Group acknowledges that the ValueAct Designee shall have all of the Common Stock of the Company; providedrights and obligations, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice including fiduciary duties to the Company and its stockholders, of its election to act a director under applicable law and the Company’s organizational documents while the ValueAct Designee is serving on the Board. Notwithstanding the foregoing, nothing in this Section 2 shall limit any actions that may be taken by the ValueAct Designee acting solely as a potential bidder for director of the Company within 10 days consistent with his fiduciary duties as a director of the Board’s decision Company (it being understood and agreed that the ValueAct Group and the ValueAct Affiliates shall not seek to initiate do indirectly through the sale process or negotiate ValueAct Designee anything that would be prohibited if done by the Third Party acquisition proposal ValueAct Group or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the CompanyValueAct Affiliates);.
Appears in 1 contract
Samples: Cooperation Agreement (Allison Transmission Holdings Inc)
Standstill. Each Investor agrees that, for the period commencing on the date of this Agreement and ending on the earliest of (ai) Each the one year anniversary of the PW Group/XX Xxxx Group Shareholders solely on behalf Agreement, (ii) a material breach by the Company of itself and its respective Affiliates and Associates hereby severally and obligations under this Agreement which is not jointly agrees that cured within five (5) Business Days after written notice from any Investor, (iii) the date hereof until of any Contrary Event or (iv) the termination of this Agreement the board observation covenants set forth in accordance with Section 5 2 (the “Covered Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its controlled Affiliates or Associates will, and it will cause each of its controlled Affiliates and Associates not to, directly or indirectly in any mannerindirectly, acting alone or in concert with others:
(i) make, engage insubmit 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, or in nominate any candidate for election to the Board (including by way participate of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(ii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or consents proposal of the Board, or recommend or request or induce or attempt to voteinduce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of the Common Stock (including any securities withholding from voting) or grant a proxy with respect to the voting of the Company Common Stock or other voting securities to any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals person other than to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for persons appointed as proxies by the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Board;
(iiiii) seek to call, or to request the call of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or to inspect any books and records of the Company;
(iv) form, join, encourage, influence, advise join in or in any other way participate in any a “partnership, limited partnership, syndicate or other group” (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes with respect to the Common Stock or deposit any shares of this AgreementCommon Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes group consisting only of some or all or some of the persons identified Investors and their Affiliates;
(v) seek to place a Representative or other Affiliate or nominee on the Group 13Ds (as defined below) as Board or seek the removal of any member of the date hereof and their Affiliates and Associates, but not including any other entities Board or persons not identified on a change in the Group 13Ds as size or composition of the date hereofBoard;
(vi) with respect to any securities of the Company acquire or otherwise in any manner agree, attemptoffer, seek or propose to deposit 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 Company;
(vii) 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 any voting trust structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar arrangementtransaction involving the Company, its subsidiaries or subject its business, whether or not any securities such transaction involves a change of control of the Company to (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 arrangement such transaction on the same basis as other stockholders of the Company, or agreement with respect to from participating in any such transaction that has been approved by the voting thereof, except as expressly set forth in this AgreementBoard);
(iiiviii) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions purchase or otherwise, any securities beneficial ownership of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% interests in the aggregate of the shares of Common Stock outstanding at such time, Company’s indebtedness or (B) any transaction approved by written consent an aggregate amount of a majority more than 9.99% of the Board, excluding the Nominees and their Replacements;
Company’s outstanding Common Stock (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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause which shall not (A) preclude the tender include Common Stock issued in connection with a stock split, stock dividend or similar corporate action initiated by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transactionsecurities beneficially owned by any of the Investors or their Affiliates); provided, however, nothing herein shall prevent any Investor from confidentially seeking a waiver from this provision;
(Bix) prohibit short sell the Company’s capital stock, or otherwise pledge, hypothecate or put any PW liens against the Company’s capital stock, except that an Investor may partake in customary margin transactions with a broker regulated by FINRA;
(x) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing;
(xi) take any action challenging the validity or enforceability of any provisions of this Section 5; or
(xii) enter into any agreement, arrangement or understanding concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Except as expressly provided in Section 2, the Investor Group Shareholders shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as it determines in its sole discretion and (ii) disclose, publicly or XX Xxxx Group Shareholders otherwise, how it intends to vote or Affiliate act with respect to any securities of the Company, any stockholder proposal or Associate thereof from offering other matter to purchase securities or assets be voted on by the stockholders of the Company if and the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);reasons therefor.
Appears in 1 contract
Standstill.
(a) Each of Purchaser agrees that, during the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from Standstill Period (unless specifically requested in writing by the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Company), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willsuch Purchaser shall not, and it will shall cause each of its Affiliates and Associates (collectively and individually, the “Purchaser Affiliates”) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board of Directors or to approve shareholder proposalsstockholder proposals that have not been authorized and approved, or recommended for approval, by the Board of Directors, 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) (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 shareholder stockholder meeting) , or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not such Purchaser’s Purchaser Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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 set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders such Purchaser (together with their Affiliates and Associates and any other persons with whom they may be its Purchaser Affiliates), having Beneficial Ownership of a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 number of shares of Company Common Stock that exceeds the number of shares of Company Common Stock that would have been issuable upon conversion of the Exchange Act, over more than 17.49% in the aggregate Notes at such time (assuming for such purposes that all of the Notes issued at the Closing remained outstanding), excluding any issuance by the Company of shares of Company Common Stock outstanding at such timeor options, and (B) with respect warrants or other rights to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of acquire Company Common Stock outstanding at such time(or the exercise thereof) to any SL Affiliated Director as compensation for their membership on the Board of Directors; provided provided, that nothing herein will require any Notes, shares of Company Common Stock or other securities to be sold to the extent such personsPurchaser and such Purchaser’s Purchaser Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar any other Company action actions that reduces the number of outstanding shares of Company Common Stock. For the avoidance of doubt, this Section 4.03(a)(iii) shall not restrict conversion of the Notes and shall not be violated by any conversion rate adjustment. For purposes of this Section 4.03(a)(iii), no securities Beneficially Owned by a portfolio company of such Purchaser or its Affiliates will be deemed to be Beneficially Owned by such Purchaser or any of its Affiliates only so long as (x) such portfolio company is not an Affiliate of such Purchaser for purposes of this Section 4.03 under the definition of “Affiliate” in this Agreement, (y) neither such Purchaser and nor any of its Purchaser Affiliates has encouraged, instructed, directed, assisted or advised such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither such Purchaser or any of its Affiliates is a member of a “group” (as defined in Section 13(d)(3) of the Exchange Act) with that portfolio company with respect to any securities of the Company;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of material all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries 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; providedprovided that, howeverfor the avoidance of doubt, that this clause shall not (A) preclude the tender by any PW Group Shareholders such Purchaser or XX Xxxx Group Shareholders or an its Purchaser Affiliate or an Associate thereof of any securities of the Company into any tender Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or exchange offer, or the vote by any PW Group Shareholders such Purchaser or XX Xxxx Group Shareholders or an its Purchaser Affiliate or Associate thereof of any voting securities of the Company with respect to any Extraordinary Transaction;
(v) (A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) prohibit seek representation on the Board of Directors, except as expressly set forth herein, (C) seek the removal of any PW Group Shareholders member of the Board of Directors (other than an SL Affiliated Director in accordance with Section 4.07), (D) solicit consents from stockholders or XX Xxxx Group Shareholders otherwise act or Affiliate or Associate thereof from offering seek to purchase securities or assets act by written consent with respect to the Company, (E) conduct a referendum of stockholders of the Company if or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the sale DGCL or otherwise;
(vi) take any action in support of such securities or assets is initiated by make any proposal or request that constitutes: (A) controlling or changing the Company through an open bidding processBoard of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) a material change in the capitalization or dividend policy of the Company, (C) prohibit a material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the 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 12(g)(4) of the Exchange Act;
(vii) make statements reasonably expected to disparage or cause to be disparaged the Company or its Subsidiaries or any of its current or former officers or directors in a manner reasonably expected to cause harm to such person and using a means of communication that is reasonably expected to be and results in a broad dissemination of such remarks (provided such Purchaser or its applicable Affiliates shall have an opportunity to publicly cure any such statement within 2 Business Days after being informed by the event Company that such Purchaser or its Affiliates have breached this clause (vi));
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Section 4.03; or
(ix) enter into any discussions, 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.
(b) The foregoing provisions of Section 4.03(a) shall not be deemed to prohibit a Purchaser or any of its Purchaser Affiliates or their respective directors, executive officers, partners, employees or managing members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors or requesting actions in connection with a Permitted Loan or Permitted Debt Financing Transaction consistent with Section 4.09, in each case so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; provided, that no such person may request, directly or indirectly, any amendment, modification or waiver of this Section 4.03 (including this Section 4.03(b)) other than a confidential request made to the Company that would not reasonably be expected to require any public disclosure of such request.
(c) Notwithstanding anything in this Section 4.03 to the contrary, if (i) the Company enters into negotiations a definitive agreement providing for a transaction that, if consummated, would result in a Change in Control and (ii) the Company had not, reasonably prior to entering into such definitive agreement, provided each Purchaser with a Third Party regarding written notice inviting the Purchaser Affiliates to make one or more proposals or offers to effect a proposal transaction that would result in Change in Control, then after the announcement of such transaction and prior to be acquired by the earlier of any termination of such Third Partydefinitive agreement or Company stockholder approval of such definitive agreement, nothing in this Section 4.03 will prevent the Purchaser Affiliates (A) from submitting to the Board of Directors one or a Third Party commences a hostile tender offer to acquire all more bona fide proposals or substantially all of the Common Stock of the Company; providedoffers for an alternative transaction involving, thatdirectly or indirectly, in the case of one or more Purchaser Affiliates, (B) pursuing and entering into any such alternative transaction with the Company and (C) above, the PW Group Shareholders or, taking any actions in the event that one or more furtherance of the Nominees or their Replacements are officersforegoing, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice including actions relating to the Company of its election to act as a potential bidder for the Company within 10 days delisting and/or deregistration of the BoardCompany’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offersecurities, as applicable, and from after delivery obtaining equity and/or debt financing for the alternative transaction as long as any proposal or offer is conditioned on the proposed transaction being approved by the Board of such notice Directors.
(d) For purposes of this Section 4.03 only and until such time as notwithstanding anything herein to the PW Group Shareholders orcontrary, in the event that one or more calculating any Purchaser’s Beneficial Ownership of shares of the Nominees or their Replacements are employees of, or Disclosing Nominees toCompany Common Stock, the XX Xxxx Group Shareholdersnumber of shares of Company Common Stock issuable upon conversion of the Notes Beneficially Owned by each Purchaser and its Affiliates as of any date shall be, for each $1,000 principal amount of the Notes, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions sum of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided the Daily Share Amount (after giving effect to the Nominees or their Replacements shall be redacted applicable Cash Percentage then in effect) for the applicable Observation Period as defined and calculated pursuant to the extent relating to Indenture as if such sale process and/or third party offers Note was being converted on such date (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Companyand assuming all such Notes would be converted by a single holder);.
Appears in 1 contract
Samples: Investment Agreement
Standstill. (a) Each 8.1 Without prejudice to any obligations the Recipient may have at law, under the other provisions of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither under the Code or otherwise, the Recipient undertakes that it nor any of its Affiliates or Associates willshall not, and it will cause each shall procure that no member of its Affiliates the Recipient's Group (and Associates not to, directly or indirectly in any manner, alone or no person acting in concert with others:
(iit or them) make, engage in, or in any way participate inwill, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise either alone or in conjunction with any way participate in any “group” (as such term is defined in Section 13(d)(3) third party, for a period of 12 months from the Exchange Act for purposes date of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;:
(iiia) acquire, offer or propose procure or induce any other person to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result interest in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) that would knowingly result and interpreted in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file accordance with the SEC with respect to its ownership of Common Stock Code) or enter into any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that agreement or arrangement (whether legally binding or not) or do any act as a result of which the transaction it will file a Schedule 13G Recipient or any other member of the Recipient's Group (or any person acting in concert with respect to its ownership of Common Stock provided that, unless such Third Party is it) may acquire an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% interest in the aggregate securities of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their ReplacementsCompany;
(vb) effect make, or seek procure or induce any other person to effect make, any offer for all or any of the securities of the Company (as defined and interpreted in accordance with the Code) or enter into any agreement or arrangement (whether legally binding or not) or do any act as a result of which the Recipient or any other member of the Recipient's Group (or any person acting in concert with it) may become obliged (whether under the Code or otherwise) to make an offer for all or any of the securities of the Company; or
(c) announce, or procure or induce any other person to announce, any offer for all or any of the securities of the Company (as defined and interpreted in accordance with the Code) or enter into any agreement or arrangement (whether legally binding or not) or do any act as a result of which the Recipient or any other member of the Recipient's Group (or any person acting in concert with it) may become obliged (whether under the Code or otherwise) to announce an offer for all or any of the securities of the Company.
8.2 The restrictions in clause 8.1 shall not apply or cease to apply (as the case may be) if:
(a) the Company has provided its prior written consent to the actions taken;
(b) any member of the Recipient's Group or any person acting in concert with any member of the Recipient's Group makes or announces an offer under Rule 2.7 of the Code to acquire the Company that is recommended by the directors of the Company at the time of such announcement; or
(c) a third party which is not acting in concert with any member of the Recipient's Group makes or announces an offer under Rule 2.7 of the Code to acquire the Company (whether such offer is recommended or not); or
(d) the Company announces that it has been approached by a third party (not acting in concert with any member of the Recipient's Group) in relation to a possible offer for the Company and the board of directors of the Company is in discussions with such third party.
8.3 In clause 8, offer means any general, partial, tender or other type of offer including, without limitation, by entering into any discussions, negotiations, agreements takeover or understandings whether or not legally enforceable with any personmerger transaction (however effected), offer reverse takeover, scheme of arrangement or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seekcourt scheme, offer by a parent company for shares in its subsidiary, share exchange or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);similar transaction.
Appears in 1 contract
Samples: Confidentiality Agreement
Standstill. (a) Each member of the PW Group/XX Xxxx ValueAct Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (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 ValueAct Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “ValueAct Affiliates,” provided that no portfolio company of the ValueAct Group shall be deemed a “ValueAct Affiliate” so long as such portfolio company (i) has not discussed the Company or its business with the ValueAct Group or the ValueAct Designee, (ii) has not received from the ValueAct Group or the ValueAct Designee information concerning the Company or its business, and it will cause each (iii) is not acting at the request of, in coordination with or on behalf of its Affiliates and Associates the ValueAct Group or the ValueAct Designee), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) , or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not ValueAct Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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 set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW ValueAct Group Shareholders (together with their Affiliates and Associates and the ValueAct Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.4912.5% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such personsthe ValueAct Group and the ValueAct Affiliates, collectively with their Affiliates and Associatescollectively, exceed exceeds the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, 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/XX Xxxx ValueAct Group Shareholders or any of their Affiliates ValueAct Affiliate to any person or entity not a party to this agreement, member of the Board, director or officer of the Company, a ValueAct Affiliate, or legal counsel to any party to this Agreement (a “Third Party (as defined belowParty”) that would knowingly result in such Third Party, together with its Affiliates affiliates and Associatesassociates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 109.9% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any except in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW the ValueAct Group Shareholders or XX Xxxx Group Shareholders or an a ValueAct Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW the ValueAct Group Shareholders or XX Xxxx Group Shareholders or an a ValueAct Affiliate or Associate thereof of any voting securities of the Company with respect to any Extraordinary Transaction;
(vi) 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;
(vii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation on the Board, except as set forth herein, (C) seek the removal of any PW Group Shareholders member of the Board, (D) solicit consents from stockholders or XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent, (E) conduct a referendum of stockholders or Associate thereof from offering (F) make a request for any stockholder list or other Company books and records, whether pursuant to purchase securities Section 220 of the DGCL or assets otherwise;
(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or By-laws, or other actions that may impede or facilitate the acquisition of control of the Company if the sale by any person, (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event 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 enters to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) disparage or cause to be disparaged the Company or Affiliates thereof, any of its current or former officers or directors;
(x) 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;
(xi) enter into negotiations any discussions, negotiations, agreements or understandings with a any Third Party regarding a proposal 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
(xii) except as contemplated by Section 2(a)(iv), 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 ValueAct Group or its directors, officers, partners, employees, members or agents (acting 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 such communications.
(b) Each member of the ValueAct Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any ValueAct Affiliate, to be acquired by such Third Partypresent for quorum purposes and to be voted, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of at the Company’s Annual and Special Stockholder Meetings and at any adjournments or postponements thereof, and further agrees that at the 2013 annual meeting they shall vote in favor of all directors nominated by the Board for election at such meeting (including the ValueAct Designee as applicable) and in accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meeting; provided, thathowever, that with respect to a proposal related to an Extraordinary Transaction, the ValueAct Group and the ValueAct Affiliates may vote their shares of Common Stock beneficially owned, directly or directly, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more discretion of the Nominees ValueAct Group or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group ShareholdersValueAct Affiliate, as applicable, .
(c) Nothing in this Section 2 shall have given written notice to limit any actions that may be taken by the ValueAct Designee acting solely as a director of the Company of its election to act consistent with his fiduciary duties as a potential bidder for director of the Company within 10 days of (it being understood and agreed that the Board’s decision ValueAct Group and the ValueAct Affiliates shall not seek to initiate do indirectly through the sale process or negotiate ValueAct Designee anything that would be prohibited if done by the Third Party acquisition proposal ValueAct Group or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the CompanyValueAct Affiliates);.
Appears in 1 contract
Samples: Nomination and Standstill Agreement (Motorola Solutions, Inc.)
Standstill. (a) Each RCF agrees that effective as of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (and continuing until the “Covered Period”), except as expressly set forth in this AgreementTermination Date, neither it the RCF Group nor any of its Affiliates Affiliates, principals, directors, general partners, officers, employees, members, agents or Associates representatives, will, and it will cause each acting alone or "jointly or in concert" (within the meaning of its Affiliates and Associates not toapplicable securities laws) with any other Person, unless specifically consented to in writing by the Board, directly or indirectly in any manner, alone or in concert with othersindirectly:
(i) make, or induce any person to make, any unsolicited take-over bid, or any other unsolicited merger or unsolicited going-private transaction involving the Company; or
(ii) engage in, participate in, or in any way participate ininitiate, directly or indirectly, any “"solicitation” of proxies " (as such terms are used term is defined in the proxy rules of the SEC but without regard to the exclusion set forth CBCA and in Rule 14a-1(l)(2)(ivany applicable securities laws) of the Exchange Act) proxies or consents to voteconsents, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);; or
(iiiii) forminitiate, join, encourage, influence, advise propose or in any way participate in any “group” otherwise "solicit" (as such term is defined in Section 13(d)(3the CBCA) securityholders of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect Company to vote any securities of the Company or otherwise in on any manner agree, attempt, seek or propose to matter; or
(iv) deposit any securities of the Company in any into a voting trust or similar arrangementtrust, or subject any securities of the Company to any agreement or arrangement or agreement with respect to the voting thereofof such securities, except or enter into any other agreement or arrangement having similar effect to which, in each case, a Person who is not an Affiliate of the RCF Group is a party; or
(v) seek, alone or jointly or in concert with others, (i) to requisition or call a meeting of the shareholders of the Company, (ii) to obtain representation on, or nominate or propose the nomination of any candidate for election to, the Board, other than as expressly set forth provided in this Agreement;
, or (iii) acquireto effect the removal of any member of the Board or otherwise alter the composition of the Board, offer or propose to acquireother than as expressly provided in this Agreement; or
(vi) submit, or agree induce any person to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwisesubmit, any securities shareholder proposal pursuant to Section 137 of the CBCA; or
(vii) commence, encourage or support any derivative action in the name of the Company or any rights decoupled from the underlying securities of its Affiliates, or any action or proceeding against the Company that would result in or any of its Affiliates or any of its or their current or former officers or directors (A) with respect to collectively, the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time"Subject Parties"); provided that nothing herein in this Section 6(a)(vii) will require Common Stock prevent, limit or restrict the RCF Group from responding to be sold any such action or proceeding commenced against the RCF Group by any of the Subject Parties or taking any action to enforce the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under terms of this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;Agreement; or
(ivviii) sellenter into any discussions, offer agreements or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or understandings with any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC Person with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result contemplation of the transaction it will file a Schedule 13G foregoing, or advise, assist, support or encourage any person to take any action inconsistent with respect to its ownership the foregoing; or
(ix) make any public disclosure of Common Stock provided thatany consideration, unless such Third Party is an Institutional Stockholder (e.g.intention, Fidelity, Vanguard, Dimensional, etc.), such Third Party, together plan or arrangement inconsistent with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate any of the shares foregoing, including any private request to amend, waive or terminate any provision of Common Stock outstanding at such time, or (B) any transaction approved by written consent of this Agreement that would require the Company to make a majority of the Board, excluding the Nominees and their Replacements;public disclosure.
(vb) effect or seek to effect The restrictions in this Section 6(a) shall terminate automatically upon any material breach of this Agreement by the Company (including, without limitation, a breach of Section 2 or Section 3, as applicable, or a failure to issue the Press Release in accordance with Section 9) upon five (5) business days' written notice by entering into any discussions, negotiations, agreements or understandings whether or RCF to the Company if such breach has not legally enforceable with any personbeen cured within such notice period. Notwithstanding the foregoing provisions of this Section 6(a), offer or propose to effect, cause or participate in, or the parties acknowledge and agree that the provisions of Section 6(a) will not limit in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving respect RCF's ability to: (i) communicate privately with the Company Board or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities officers of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities actions, activities, or assets is initiated matters otherwise restricted by the Company through an open bidding processSection 6(a), or (Cii) prohibit vote or enter into a support agreement in respect of a Change of Control Transaction, provided the RCF Group has not committed a material breach of its obligations under this Section 6(a). For certainty, nothing in this Section 6(a) shall prevent the RCF Group from selling, pledging, purchasing, tendering, or undertaking any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the other ordinary course market transaction in securities of the Company in the event the Company enters into negotiations Company, including with a Third Party regarding a proposal respect to be acquired by such Third Party, some or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of Shares beneficially owned by the Company; provided, that, in RCF Group (or over which the case of (B) and (C) above, the PW RCF Group Shareholders or, in the event that one exercises control or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Companydirection);.
Appears in 1 contract
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly Investor agrees that that, from the date hereof until the termination of this Agreement in accordance with Section 5 (until the “Covered expiration of the Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly indirectly, in any manner, acting alone or in concert with others:
(i) make, engage insubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any candidate for election to the Board (including by way participate of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(ii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or consents proposal of the Board, or recommend or request or induce or attempt to voteinduce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of any securities of the Company Common Stock or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become grant 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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 proxy with respect to the voting thereof, except of the Common Stock or other voting securities to any person other than to the Board or persons appointed as expressly set forth in this Agreementproxies by the Board;
(iii) acquire, offer or propose seek to acquirecall, or agree to acquirerequest the call of, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities special meeting of the Company Company’s stockholders, or any rights decoupled from the underlying securities make a request for a list of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates Company’s stockholders or for any books and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 records of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common StockCompany;
(iv) sellvote for any nominee or nominees for election to the Board, offer other than those nominated or agree supported by the Board;
(v) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to sellplace a representative or other Affiliate, directly Associate or indirectly, through swap nominee on the Board or hedging transactions or otherwise, seek the securities removal of any member of the Board or a change in the size or composition of the Board;
(vi) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing;
(vii) take any action challenging the validity or enforceability of any provisions of this Section 3(a);
(viii) publicly request that the Company amend or waive any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders provision of this Section 3(a); or
(ix) enter into any agreement, arrangement or understanding concerning any of their Affiliates the foregoing (other than this Agreement) or encourage or solicit any person to undertake any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such timeforegoing activities; provided, however, that the foregoing restriction nothing in this Section 3(a) or elsewhere in this Agreement shall not apply to prohibit (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock Investor from privately making any statement or any Third Party who represents expressing or disclosing such Investor’s views in private to the PW Group/XX Xxxx Group Shareholders in writing that as a result Chief Executive Officer, the Chief Financial Officer or another other officer or director of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, Company; or (B) any transaction approved by written consent of a majority of the BoardInvestor, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof from voting in such manner as it deems appropriate on any matter unrelated to the election of any securities directors of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of and the Company with respect to any Extraordinary Transaction, other matters referenced in Section 2(a).
(Bb) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company As used in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);this Agreement:
Appears in 1 contract
Samples: Investors Agreement (LRAD Corp)
Standstill. (a) Each member of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (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 Xxxx Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, and it will cause each of its Affiliates and Associates the “Xxxx Affiliates”), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not Xxxx Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Xxxx Group Shareholders (together with their Affiliates and Associates and the Xxxx Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.497.5% in the aggregate of the shares of Common Stock outstanding at such time; provided that provided, that, nothing herein will require Common Stock to be sold to the extent such personsthe Xxxx Group and the Xxxx Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates Xxxx Affiliate to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company or (D) Xxxx Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party (as defined below) Party”), that would knowingly result in such Third Party, together with its Affiliates affiliates and Associatesassociates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 104.9% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any except in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX the Xxxx Group Shareholders or an a Xxxx Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group Shareholders or XX the Xxxx Group Shareholders or an a Xxxx Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction;
(vi) 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 securities of the Company;
(vii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation, on or nominate any PW Group Shareholders 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 XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent, (E) conduct a referendum of stockholders, or Associate thereof from offering (F) make a request for any stockholder list or other Company books and records, whether pursuant to purchase securities Section 220 of the DGCL or assets otherwise;
(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company if the sale by any person; (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event 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 enters to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) disparage or cause to be disparaged the Company or Affiliates thereof, any of its or their respective current or former officers, or any of its or their respective directors;
(x) 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;
(xi) enter into negotiations any discussions, negotiations, agreements, or understandings with a any Third Party regarding a 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
(xii) 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 Xxxx Group or its directors, officers, partners, employees, members or agents (acting 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 such communications.
(b) Each member of the Xxxx Group shall, during the Covered Period, cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any Xxxx 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 all such meetings they shall vote in favor of (i) all directors nominated by the Board for election at such meeting and (ii) in accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meeting, other than with respect to (a) an Extraordinary Transaction, (b) any proposed issuance of Company securities or (c) any proposal to be acquired by such Third Party, implement any takeover defense measures or a Third Party commences a hostile tender offer to acquire all any other proposal that would diminish or substantially otherwise impair in any material respect the rights of Company shareholders.
(c) The Xxxx Group acknowledges that the Xxxx Designee shall have all of the Common Stock rights and obligations, including fiduciary duties to the Company and its stockholders, of a director under applicable law and the Company’s organizational documents while the Xxxx Designee is serving on the Board. Notwithstanding the foregoing, nothing in this Section 2 shall limit any actions that may be taken by the Xxxx Designee acting solely as a director of the Company consistent with his fiduciary duties as a director of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);.
Appears in 1 contract
Samples: Cooperation Agreement (Allison Transmission Holdings Inc)
Standstill. (a) Each member of the PW Group/XX Xxxx ValueAct Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (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 ValueAct Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “ValueAct Affiliates,” provided that no portfolio company of the ValueAct Group shall be deemed a “ValueAct Affiliate” so long as such portfolio company (A) has not had discussions with the ValueAct Group regarding any of the restricted matters set forth in this Section 2(a) regarding the Company, (B) has not received from the ValueAct Group or the ValueAct Designee information concerning the Company or its business, and it will cause each (C) is not acting at the request of, in coordination with or on behalf of its Affiliates and Associates the ValueAct Group or the ValueAct Designee), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, vote or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not ValueAct Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW ValueAct Group Shareholders (together with their Affiliates and Associates and the ValueAct Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate 100,298,295 of the shares of Common Stock outstanding at such timetime (as adjusted for any stock splits, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipreclassifications, as determined in accordance with Rule 13d-3 of the Exchange Actcombinations, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase stock dividends or similar Company action that reduces actions by the number of outstanding shares of Common StockCompany);
(iv) sell, offer or agree to sell, sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the PW Group/XX Xxxx ValueAct Group Shareholders or any of their Affiliates ValueAct Affiliate to any person or entity not a (A) party to this agreement, (B) member of the Board, (C) officer of the Company or (D) a ValueAct Affiliate (a “Third Party (as defined belowParty”) that would knowingly result in such Third Party, together with its Affiliates affiliates and Associatesassociates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 104.9% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any except in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or frustrate or seek to frustrate any Extraordinary Transaction proposed or endorsed by the Company, or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender (or action not to tender) by any PW the ValueAct Group Shareholders or XX Xxxx Group Shareholders or an a ValueAct Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW the ValueAct Group Shareholders or XX Xxxx Group Shareholders or an a ValueAct Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction;
(vi) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(vii) (A) call or seek to call any meeting of shareholders, including by written consent, (B) prohibit seek representation on, or nominate any PW Group Shareholders candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent, (E) conduct a referendum of shareholders or Associate thereof from offering (F) make a request for any shareholder list or other Company books and records, whether pursuant to purchase securities Sections 23B.07.200 or assets 23B.16.020 of the RCW or otherwise;
(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Articles of Incorporation or By-laws, or other actions, that may impede or facilitate the acquisition of control of the Company if the sale by any person; (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event 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 enters into negotiations with a Third Party regarding a proposal to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) make any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages or causes to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all disparaged (A) any of the Common Stock of the Company; provided, that, proposals described in the case of this Agreement or (B) the Company or Affiliates thereof, and any of its current or former officers or directors;
(Cx) abovemake any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the PW Group Shareholders orCompany, in its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the event that one provisions of this Agreement;
(xi) enter into any discussions, negotiations, agreements or more understandings with any Third Party with respect to any of the Nominees foregoing, or their Replacements are 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
(xii) 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 ValueAct Group or its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with the Company’s directors or employees ofofficers so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, or Disclosing Nominees communicating privately with the Company’s shareholders, so long as such communications do not breach the provisions of this Section 2(a).
(as defined belowb) toEach member of the ValueAct Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any ValueAct Affiliate, to be present for quorum purposes and to be voted, at the Company’s 2013 annual shareholder meeting, the XX Xxxx Group Shareholders2014 Annual Meeting, and any special shareholder meeting, and at any adjournments or postponements of any such annual or special meeting, and as provided in Annex I.
(c) Nothing in this Section 2 shall limit any actions that may be taken by the XX Xxxx Group Shareholders, ValueAct Designee acting solely as applicable, shall have given written notice to a director of the Company of its election to act consistent with his fiduciary duties as a potential bidder for director of the Company within 10 days of (it being understood and agreed that the Board’s decision ValueAct Group and the ValueAct Affiliates shall not seek to initiate do indirectly through the sale process or negotiate ValueAct Designee anything that would be prohibited if done by the Third Party acquisition proposal ValueAct Group or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the CompanyValueAct Affiliates);.
Appears in 1 contract
Standstill. (a) Each of VIEX agrees that, during the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates under its control or direction will, and it will cause each of its such Affiliates and Associates not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” solicitation of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested a “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 Regulation 14A under the Exchange Act of proxies or otherwise)consents, in each case, with respect to securities of the Company;
(ii) form, join, encourage, influence, advise join or in any way participate in any “group” (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (respect to the Common Stock, other than a Section 13(d) Group “group” that includes all or some of the persons or entities identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and AssociatesExhibit A, but does not including include any other persons or entities or persons not identified on the Group 13Ds Exhibit A as of the date hereof;
(iii) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company Common Stock in any voting trust or similar arrangement, or subject any securities of the Company Common Stock to any arrangement or agreement with respect to the voting thereofof any Common Stock, except as expressly set forth other than any such voting trust, arrangement or agreement solely among the members of VIEX and otherwise in accordance with this Agreement;
(iiiiv) acquireseek, offer alone or propose to acquirein concert with others, representation on the Board, or agree take any other action with respect to acquire, directly the election or indirectly, whether by purchase, tender or exchange offer, through the acquisition removal of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities director of the Company or the calling of any rights decoupled from meeting or referendum of stockholders or the underlying securities taking of the Company that would result in any action by written consent;
(A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and make any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 proposal for consideration by stockholders at any annual or special meeting of stockholders of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such timeCompany, or (B) make any transaction approved by written consent of a majority of the Board, excluding the Nominees offer or proposal (with or without conditions and their Replacements;
(v) effect whether public or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any personprivate), offer or propose with respect 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, reorganizationrestructuring, sale or acquisition of material assets, liquidation, dissolution disposition or other extraordinary transaction business combination involving the Company or any of its subsidiaries Affiliates;
(vi) commence or joint ventures threaten any action or proceeding (other than any action or proceeding to enforce the terms of this Agreement) against the Company or any of their respective securities (each, an “Extraordinary Transaction”), its Affiliates or make any public statement demand for access to books and records of the Company or any of its Affiliates;
(vii) make any request or submit any proposal seeking to amend or waive any of the terms of this Agreement; or
(viii) advise, encourage, support or influence, or seek to advise, encourage, support or influence, any person or entity with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender taking of any action or the making of any statement by any PW Group Shareholders person or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities entity of the Company into any tender or exchange offertypes enumerated in clauses (i) through (vii).
(b) For the purposes of this Agreement, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof “Standstill Period” shall mean the period commencing upon the execution and delivery of any securities this Agreement and ending on the earliest of (i) the completion of the Company with respect to any Extraordinary TransactionNext Annual Meeting, (Bii) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that three (3) New Directors are not appointed to the Board, or in the event any of Messrs. Mutch, Xxxxxxxx and Xxxxx has not resigned from the Board, within ninety (90) days from the date of this Agreement or, on the ninety-first (91st) day after the date of this Agreement, unless, with respect to the appointment of the New Directors or in the event any of Messrs. Mutch, Xxxxxxxx and Xxxxx has not resigned from the Board, the failure to appoint such New Directors or the failure of Messrs. Mutch, Xxxxxxxx and Xxxxx to resign from the Board is the result of VIEX unreasonably withholding its approval with respect to one or more proposed New Directors as determined by a judicial finding (which has not been reversed or overturned) by a court specified in Section 13 in which the parties to this Agreement participated, and (iii) a breach of this Agreement by the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company. The Company agrees that it will accept stockholder nominations for director and proposals of its election to act as a potential bidder business for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offerNext Annual Meeting until June 30, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);2017.
Appears in 1 contract
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly Investor agrees that that, from the date hereof until the termination of this Agreement in accordance with Section 5 (until the “Covered expiration of the Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates or Family Members will, and it will cause each of its Affiliates and Associates and Family Members not to, directly or indirectly 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 of the following actions:
(i) makesubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, engage inas amended (the “Exchange Act”) or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate candidate for election to the Board;
(ii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or consents proposal of the Board, or recommend or request or induce or attempt to vote, induce or seek to advise, encourage or influence any other person with respect to the voting of any securities voting stock of the Company (including any withholding from voting) or grant a proxy with respect to the voting of any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities voting stock of the Company”) for the election of individuals Company to any person other than to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for persons appointed as proxies by the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Board;
(iiiii) seek to call, or to request the call of, a special meeting of the Company’s stockholders;
(iv) make a request for a list of the Company’s stockholders or for any books and records of the Company;
(v) form, join, encourage, influence, advise join in or in any other way participate in any a “partnership, limited partnership, syndicate or other group” (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes with respect to the voting stock of this Agreement, the Company or deposit any such group, shares of voting stock of the Company in a “Section 13(d) Group”) with voting trust or similar arrangement or subject any persons shares of voting stock of the Company to any voting agreement or pooling arrangement (other than a Section 13(d) Group “group” that includes consists solely of all or some of the persons identified parties to this Agreement or any of their respective Affiliates or Associates);
(vi) 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;
(vii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Group 13Ds (as defined below) as Board or seek the removal of any member of the date hereof and their Affiliates and Associates, but not including any other entities Board or persons not identified on a change in the Group 13Ds as size or composition of the date hereofBoard or the committees thereof;
(viii) with respect to any securities of the Company acquire or otherwise in any manner agree, attemptoffer, seek or propose to deposit acquire, or cause to be acquired, ownership (including beneficial ownership) of any securities of the assets or business of the Company in or any voting trust rights or similar arrangement, options to acquire any such assets or subject business from any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreementperson;
(iiiix) other than at the direction of the Board or any committee thereof, seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend or distribution or change in dividend or distribution policy, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(x) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions purchase or otherwise, beneficial ownership of any securities voting stock of the Company or that, together any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipvoting stock beneficially owned thereby, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% represents in the aggregate (amongst all of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates Investors and any other persons with whom they may be a Section 13(dAffiliate or Associate thereof) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 excess of 4.9% of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock Company’s outstanding at such timevoting stock; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any voting rights decoupled from the underlying securities voting stock of the Company held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees Investors and their ReplacementsAffiliates, Associates and Family Members;
(vxi) 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 indisclose publicly, or privately in a manner that could reasonably be expected to become public, any way intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive the terms of this Agreement; provided that the Investors may make confidential requests to the Board to amend, modify or waive any provision of this Section 3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure thereof by the Company, the Investors or any other person;
(xii) institute, solicit, assist or facilitate join any other person to effect or seeklitigation, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution arbitration or other extraordinary transaction proceeding against or involving the Company or any of its subsidiaries current or joint ventures former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this Section 3 or otherwise take any action challenging the validity or enforceability of any provisions of this Section 3; or
(xiii) enter into any negotiations, discussions, agreement, arrangement or understanding with any person concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the Investors from: (A) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (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 securities (eachAffiliates or Associates, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, provided that a breach by Investor of this clause shall Agreement is not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities cause of the Company into applicable requirement. Furthermore, nothing in this Agreement shall be deemed to restrict in any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities way the ability of the Company with respect New Director (or any of his replacements selected pursuant to any Extraordinary Transaction, this Agreement) from fulfilling their statutory duties as directors.
(Bb) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of As used in this Agreement:
(i) the Company if terms “Affiliate” and “Associate” shall have the sale of such securities or assets is initiated respective meanings set forth in Rule 12b-2 promulgated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase SEC under the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company)Exchange Act;
Appears in 1 contract
Standstill. Each party agrees that, for a period of one (a1) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that year from the date hereof until Effective Date, unless such party shall have been specifically invited in writing by the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreementother party, neither it such party nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly affiliates shall in any manner, alone directly or in concert with othersindirectly:
(ia) makeeffect or seek, engage inoffer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way participate inadvise, directly assist or indirectlyencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other party, other than purchases of products in the ordinary course of business; (ii) any tender or exchange offer, merger or other business combination involving the other party; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party; or (iv) any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Securities and Exchange ActCommission) or consents to vote, or seek to advise, encourage or influence vote any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)party;
(iib) form, join, encourage, influence, advise join or in any way participate in any a “group” (as such term is defined in Section 13(d)(3) of under the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereofAct) with respect to any securities of the Company other party;
(c) otherwise act, alone or otherwise in any manner agreeconcert with others, attemptto seek to control or influence the management, seek Board of Directors or propose to deposit any securities policies of the Company in other party;
(d) take any voting trust or similar arrangement, or subject action which might force the other party to make a public announcement regarding any securities of the Company to types of matters set forth in paragraph (a) above; or -3-
(e) enter into any arrangement discussions or agreement arrangements with any person with respect to any of the voting thereof, except as expressly set forth in this Agreement;
foregoing. Each party also agrees during such period not to request the other party (iii) acquire, offer or propose to acquire, or agree to acquireits Representatives), directly or indirectly, whether by purchase, tender to amend or exchange offer, through the acquisition waive any provision of control of another person, by joining a partnership, limited partnership, syndicate or other group this section (including this sentence). Each party represents and warrants that, as of the date of this Agreement, neither such party nor any Section 13(d) Group)of its affiliates owns, through swap of record or hedging transactions or otherwisebeneficially, any voting securities of the Company other party, or any rights decoupled from the underlying securities convertible into or exercisable for any voting securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etcparty.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);
Appears in 1 contract
Standstill. So long as the Icahn Associates Nominee is a member of the Board, no member of the Icahn Group nor any Icahn Affiliate shall:
(a) Each solicit proxies or written consents of stockholders, or any other person with the right to vote or power to give or withhold consent in respect of the PW Group/XX Xxxx Group Shareholders solely on behalf Voting Securities (as defined below), or conduct, encourage, participate or engage in any other type of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that referendum (binding or non-binding) with respect to, or from the date hereof until holders of Voting Securities or any other person with the termination right to vote or power to give or withhold consent in respect of this Agreement in accordance with Section 5 (the “Covered Period”)Voting Securities, except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectlyengage in (other than by voting its shares of Voting Securities in a manner that does not violate this Agreement), any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard any proxy, consent or other authority to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents vote any Voting Securities, with respect to voteany matter, or seek to advise, encourage or influence become a participant in any person contested solicitation with respect to the voting of any securities of Company, including without limitation relating to the Company removal or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)directors;
(iib) form, join, encourage, influence, advise form or join in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group, including without limitation a group (including any as defined under Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more with respect to the Common Stock, or otherwise support or participate in any effort by a third party with respect to the matters set forth in Section 3(a), or deposit any shares of Common Stock in a voting trust or subject any shares of Common Stock to any voting agreement, other than 17.49% in solely with other members of the aggregate of Icahn Group or other Icahn Affiliates with respect to the shares of Common Stock outstanding at such time, and (B) with respect now or hereafter owned by them or pursuant to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common StockAgreement;
(ivc) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, without the securities prior approval of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) that would knowingly result Board contained in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority resolution of the Board, excluding the Nominees and their Replacements;
(vx) either directly or indirectly for itself or its affiliates, or in conjunction with any other person or entity in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person)seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or (y) except as set forth in the next sentence, in any way knowingly support, assist or facilitate any other person to effect or seek, offer or propose to effect effect, or cause or participate in, any (i) tender offer or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction business combination involving the Company or any of its subsidiaries or joint ventures affiliates; (ii) any form of business combination or any acquisition or other transaction relating to a material amount of their respective securities (each, an “Extraordinary Transaction”), assets or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into or any tender of its subsidiaries or exchange offeraffiliates or (iii) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or affiliates. Notwithstanding the foregoing, nothing in this Section 3(c) shall prohibit any member of the Icahn Group or any Icahn Affiliate from engaging in private discussions with third parties regarding a potential transaction to be proposed by such third party or presenting any potential transaction to the Board on a private basis, in each case, in circumstances that would not reasonably be expected to require public disclosure by the Company or any member of the Icahn Group or any Icahn Affiliate, in each case at or around the time the proposal is made;
(d) [Intentionally omitted]
(e) make, or vote by cause to be made, any PW Group Shareholders statement or XX Xxxx Group Shareholders announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise disparages, the Company, its officers or its directors or any person who has served as an Affiliate officer or Associate thereof of any securities director of the Company on or following the date of this Agreement: (i) in any document or report filed with respect or furnished to the SEC or any Extraordinary Transactionother governmental agency, (Bii) prohibit in any PW Group Shareholders press release or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding processother publicly available format, or (Ciii) prohibit to any PW Group Shareholders journalist or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities member of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, thatmedia (including without limitation, in the case of (B) and (C) abovea television, the PW Group Shareholders orradio, in the event that one newspaper or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Companymagazine interview);.
Appears in 1 contract
Standstill. (a) Each member of the PW Group/XX Xxxx MIR Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 Covered Period (the “Covered Period”as defined below), except as expressly set forth unless specifically requested in this Agreementwriting by the Company, neither acting through a resolution of a majority of the Company’s directors not including the MIR Designee, it nor any of its Affiliates or Associates willshall not, and it will shall cause each of its controlling and controlled Affiliates or Associates (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (including for the avoidance of doubt any of its directors, officers, partners (other than limited partners) and Associates personnel) (collectively and individually, the “MIR Affiliates”; provided, that no portfolio company of the MIR Group shall be deemed a “MIR Affiliate” so long as such portfolio company (i) has not discussed the Company or its business with the MIR Group or the MIR Designee, (ii) has not received from the MIR Group or the MIR Designee information concerning the Company or its business, and (iii) is not acting at the request of, in coordination with, on behalf of, or at the direction of any member of the MIR Group), not to, directly or indirectly (including, without limitation, through its advisors, agents, representatives or third parties), in any manner, alone or in concert with others:
(i) (A) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv14a-1(l)(2) of the Exchange Act(iv)) or consents to vote, or seek to advise, knowingly encourage or knowingly influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) including for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting, (B) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)) or disclose to Third Parties its voting intentions or votes as to matters submitted to a stockholder vote, or (C) initiate, encourage or participate in, directly or indirectly, any “withhold” or similar campaign;
(ii) (A) form, join, knowingly encourage, knowingly influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes Act) or other group of this Agreement, any such group, a “Section 13(d) Group”) investors with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not MIR Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company or otherwise in any manner its securities or (B) 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 set forth in this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW MIR Group Shareholders (together with their Affiliates and Associates and MIR Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% ownership interest in the aggregate of the more than 8,204,820 shares of Common Stock outstanding at such time(as adjusted for any stock splits, and (B) with respect to reclassifications, combinations, stock dividends or similar actions by the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipCompany); provided, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such personsthe MIR Group and MIR Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock;
(iv) other than in open market broker sale transactions or in underwritten public offerings or in a transaction approved by the Board, 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/XX Xxxx MIR Group Shareholders or any Affiliate of their Affiliates MIR to any person or entity not a Party to this Agreement, a director or officer of the Company, a MIR Affiliate, or legal counsel to any Party to this Agreement (a “Third Party (as defined belowParty”) that (A) would knowingly result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of more than 3% of the shares of outstanding Common Stock outstanding (as adjusted for any stock splits, reclassifications, combinations, stock dividends or similar actions by the Company), (B) at the time of such time; providedtransaction, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has filed a Schedule 13G on file with the SEC 13D with respect to its ownership of Common Stock the Company, or any Third Party who represents (C) has run (or publicly announced an intention to the PW Group/XX Xxxx Group Shareholders in writing that as run) a result of the transaction it will file a Schedule 13G proxy contest with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% another company in the aggregate of the shares of Common Stock outstanding at such time, or past two (B2) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacementsyears;
(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)effect, offer or propose to effect, cause or participate in, or in any way knowingly assist or knowingly 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 issuance of securities, sale or acquisition of material assets, separation, spin-off, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender MIR Group or a MIR Affiliate from voting its shares with respect to an Extraordinary Transaction approved by any PW Group Shareholders the Board and put to a stockholder vote, receiving consideration as a stockholder of the Company in connection with an Extraordinary Transaction, which has been approved by the Board, pursuant to the terms of such Extraordinary Transaction, or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of tendering any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any offer for securities of the Company which has been approved by the Board;
(vi) 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 Extraordinary Transactionsecurity (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;
(vii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation on the Board, except as set forth herein, (C) seek the removal of any PW Group Shareholders member of the Board or XX Xxxx Group Shareholders management, (D) solicit consents from stockholders or Affiliate otherwise act or Associate thereof from offering seek to purchase securities act by written consent, (E) conduct a referendum of stockholders, (F) make a request for any stockholder list or assets other Company books and records, whether pursuant to the MGCL or otherwise, or (G) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than to enforce the provisions of this Agreement against the Company;
(viii) knowingly take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any change in the capitalization or dividend policy of the Company, (C) any other change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Charter or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company if the sale by any person, (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) 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;
(x) initiate any discussions with or 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;
(xi) other than with respect to the MIR Designee and not prohibited under (and in accordance with) the Company Policies, initiate discussions with any employee at the Company other than the Chief Executive Officer, Chief Financial Officer, and General Counsel (and other than any members of the Board) as set forth in the event proviso below regarding permitted private communications; or
(xii) request, directly or indirectly, any amendment or waiver of the foregoing other than through private, non-public requests that are not intended to, and would not reasonably be expected to, require any public disclosure. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit the MIR Group (or the MIR Designee) from communicating privately with the Company’s Chief Executive Officer, Chief Financial Officer, General Counsel, any member of the Board, or the MIR Designee, as applicable, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) During the Covered Period, each member of the MIR Group shall (i) cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any of MIR’s Affiliates, 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 (ii) vote in favor of all directors nominated by the Board for election at any such meeting (including the MIR Designee as applicable), against any directors not nominated and recommended for election by the Board and in accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meeting (including, for the avoidance of doubt, any stockholder proposals); provided, however, that with respect to a proposal put to a vote of the stockholders to approve an Extraordinary Transaction, the MIR Group and MIR Affiliates may vote their shares of Common Stock beneficially owned, directly or indirectly, in the discretion of the MIR Group or MIR Affiliate, as applicable.
(c) Nothing in this Agreement shall limit deliberations of the MIR Designee with the Board acting solely as a director of the Company enters into negotiations consistent with his fiduciary or other duties as a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock director of the Company.
(d) Notwithstanding any provision herein to the contrary, nothing in this Agreement shall prohibit any Party from (i) communicating, on a confidential basis, with attorneys, accountants, or financial advisors; provided(ii) taking any action necessary to comply with any law, thatrule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over the MIR Group or the Company or any of its subsidiaries, as the case may be (so long as such action does not arise as a result of or would otherwise constitute a breach of this Agreement), (iii) in the case of the MIR Group, communicating confidentially in management reports to their investors in a manner that does not disclose “Evaluation Material” (Bas such term is defined in the Confidentiality Agreement) and that is not reasonably expected to become public (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (and so long as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act such communication does not arise as a potential bidder for the Company within 10 days result of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal would otherwise constitute a breach of this Agreement); or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one (iv) complying with any subpoena or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);applicable legal process.
Appears in 1 contract
Samples: Nomination and Cooperation Agreement (Veris Residential, L.P.)
Standstill. (a) Each During the Cooperation Period, each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself Converium and Exxx will not, and will cause its respective Affiliates and Associates hereby severally its and not jointly agrees that from their respective Covered Persons and Representatives acting on their behalf (collectively with the date hereof until the termination of this Agreement in accordance with Section 5 (Stockholder Parties, the “Covered PeriodRestricted Persons”) to not, directly or indirectly, without the prior written consent, invitation, or authorization of or by the Company or the Board:
(i) acquire, or offer or agree to acquire, by purchase or otherwise, or direct any Third Party (as defined below) in the acquisition of record or beneficial ownership of any Voting Securities (as defined below), or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result, if consummated, in such Stockholder Party (solely together with its Affiliates) having aggregate beneficial ownership of, or aggregate economic or voting exposure to, more than 7.5% of the Company Common Shares outstanding at such time; provided that under no circumstance shall any Restricted Person exceed the ownership limitations set forth in and determined pursuant to Section 2 of the Company’s Articles of Incorporation, as amended;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, a meeting of the Company’s stockholders or action by written consent (or the setting of a record date therefor), (B) 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 the Board, except as expressly set forth in this AgreementSection 1, neither it nor (C) make or be the proponent of any of its Affiliates stockholder proposal to the Company or Associates willthe Board or any committee thereof, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner(D) seek, alone or in concert with others:others (including through any “withhold” or similar campaign) the removal of any member of the Board or (E) conduct a referendum of stockholders of the Company;
(iiii) makemake any request for any stockholder list or similar materials or other books and records of the Company or any of its subsidiaries, whether pursuant to Sections 2-512 and 2-513 of the Maryland General Corporation Law or any other statutory or regulatory provisions providing for stockholder access to books and records of the Company or its Affiliates;
(iv) engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are term is used in the proxy rules promulgated under the Exchange Act (as defined below) but without giving effect to any of the exclusions from such definition under SEC but rules, including without regard limitation the exclusion relating to solicitations of ten (10) or fewer stockholders) of proxies or consents with respect to the exclusion set forth election or removal of directors of the Company or any other matter or proposal relating to the Company or become a “participant” (as such term is defined in Rule 14a-1(l)(2)(iv) Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(v) make or submit to the Company or any of its Affiliates any proposal for, or offer of (with or without conditions), either alone or in concert with others, any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”) either publicly or in a manner that would reasonably require public disclosure by the Company or any of the Stockholder Parties (it being understood that the foregoing shall not restrict the Restricted Persons from electing in their own discretion to tender or not tender shares, seeking and exercising statutory appraisal rights, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as other stockholders of the Company);
(vi) disclose, other than as is consistent with the Board’s recommendation in connection with such matter, to any Third Party, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, its voting or consent intentions or votes as to matters submitted to a stockholder vote during the Cooperation Period (it being understood that instructing Third Parties to implement such votes or consents to vote, or in a ministerial manner in accordance with this Agreement would not be a violation of this provision);
(vii) knowingly seek to advise, encourage or influence any person Third Party, other than as is consistent with the Board’s recommendation on such matter, with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company;
(viii) take any action in support of or make any proposal, announcement or request, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, with respect to, (A) any change in the number, term or identity of directors of the Company or the filling of any securities convertible vacancies on the Board other than as provided under Section 1, (B) any change in the business, capitalization, capital allocation policy or exchangeable into or exercisable for any such securities (collectively, “securities dividend policy of the Company”, (C) for the election of individuals any other change to the Board or the Company’s management or corporate or governance structure, (D) any waiver, amendment or modification to approve shareholder proposalsthe Organizational Documents, (E) causing the Company Common Shares 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 a “participant” eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any contested “solicitation” for the election of directors other person (A) with respect to the giving or withholding of any proxy or consent relating to, or other authority to vote, any Voting Securities, or (B) in conducting any type of referendum relating to the Company (as such terms are defined including for the avoidance of doubt with respect to the Company’s management or used under the Exchange ActBoard) (other than a “solicitation” such encouragement or acting advice that is consistent with the Board’s recommendation in connection with such matter, or as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 otherwise specifically permitted under the Exchange Act or otherwisethis Agreement);
(iix) form, join, encourage, influence, advise or act in any way participate in concert with any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this AgreementAct, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities Voting Securities, other than solely with the Stockholder Parties and the respective Affiliates of the Company Stockholder Parties with respect to Voting Securities now or otherwise in any manner agreehereafter owned by them;
(xi) enter into a voting trust, 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 any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the voting thereoflike), except as expressly set forth in each case other than (A) this Agreement, (B) solely with the Stockholder Parties and the respective Affiliates of the Stockholder Parties or (C) granting proxies in solicitations approved by the Board;
(iiixii) acquiresell, offer or propose to acquireoffer, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer all or agree to sellsubstantially all, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any voting rights decoupled from the underlying securities Company Common Shares held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates a Restricted Person to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(vxiii) effect institute, solicit or seek to effect (includingjoin, 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 inas a party, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inknowingly assist, any tender or exchange offerlitigation, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution arbitration or other extraordinary transaction proceeding against or involving the Company or any of its subsidiaries or joint ventures or any of its or their respective securities current or former directors or officers (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transactionincluding derivative actions) in their capacities as such; provided, however, that this clause for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) preclude bringing litigation against the tender Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 10, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing or participating in bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights or (E) responding to or complying with validly issued legal process;
(xiv) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(c); or
(xv) make any request or submit any proposal to amend or waive the terms of this Agreement (including this subclause), in each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal by the Company or any of the Restricted Persons. The restrictions in this Section 2 shall terminate automatically upon the earliest of the following: (i) any material breach of this Agreement by the Company (including, without limitation, a failure to appoint the New Director (or any Replacement Director) to the Board, the Audit Committee or the Compensation Committee in accordance with Section 1 or a failure to issue the Press Release in accordance with Section 3) upon five (5) business days’ written notice by any PW Group Shareholders of the Stockholder Parties to the Company if such breach has not been cured within such notice period (or XX Xxxx Group Shareholders immediately upon receipt of such notice if such breach is incapable of being cured), provided that the Stockholder Party (A) specifies in such written notice, in reasonable detail, the material breach on which they are relying to terminate its obligations under this Section 2 and (B) the Stockholder Parties are 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 Company’s entry into a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities or assets having an Affiliate or an Associate thereof aggregate value exceeding 50% of any securities the aggregate enterprise value of the Company into and (iii) the commencement of any tender or exchange offer (by any person or group other than the Stockholder Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its stockholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act in response to the commencement of any tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including, but not limited to, the restrictions in this Section 2(c)) will prohibit or vote restrict any of the Restricted Persons from (A) making any factual statement to comply with any subpoena or other legal process or to respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any PW Group Shareholders Restricted Person), (B) making any public or XX Xxxx Group Shareholders private statement or announcement with respect to an Affiliate Extraordinary Transaction that is publicly announced by the Company or Associate thereof of any securities of by a Third Party that is party to an agreement with the Company with respect to any such Extraordinary Transaction, (BC) prohibit granting any PW Group Shareholders liens or XX Xxxx Group Shareholders encumbrances on any claims or Affiliate interests in favor of a bank or Associate thereof from offering to purchase securities broker-dealer or assets 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 Company if the sale of such securities custody or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholdersprime brokerage agreement(s), as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process (D) negotiating, evaluating and/or trading, directly or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders orindirectly, in any index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the event that one or more of the Nominees or their Replacements are employees performance of, or Disclosing Nominees tobut not primarily consist of, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs securities of the Company, (E) providing its views privately to the Board or management regarding any matter, or privately requesting a waiver of any provision of this Agreement, as long as such private communications or requests would not reasonably be expected to require public disclosure of such communications or requests by the Company or any of the Restricted Persons or (F) taking actions in furtherance of identifying Additional Director or Replacement Director candidates in accordance with this Agreement (including Section 1(b)(ii);) so long as such actions are undertaken on a confidential basis. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the New Director in his exercise of his fiduciary duties.
Appears in 1 contract
Samples: Cooperation Agreement (Franklin Street Properties Corp /Ma/)
Standstill. (a) Each Except with the prior written consent of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from Company, at all times during the date hereof until the termination of this Agreement Standstill Period (as defined below in accordance with Section 5 (the “Covered Period”19), except as expressly set forth in this Agreementthe Investor agrees not to, neither it nor any of its Affiliates directly or Associates willindirectly, and it will cause each of its Affiliates and Associates (as defined in Section 19) not to, directly or indirectly in any manner, alone or in concert with othersindirectly:
(ia) makeeffect or seek, engage inoffer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, directly or indirectly, any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard SEC) to the exclusion set forth in Rule 14a-1(l)(2)(iv) vote any Voting Securities of the Exchange Act) Company or consents consent to vote, any action from any holder of any Voting Securities of the Company or conduct or suggest any binding or nonbinding referendum or resolution or knowingly seek to advise, encourage or influence any person Person with respect to the voting of or the granting of any securities of the Company or consent with respect to any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities Voting Securities of the Company”; provided, however, that the foregoing restrictions do not apply to any vote or other action that is consistent with the Company’s management’s recommendation in connection with such matter;
(b) for the election except as explicitly permitted in Section 1(e) of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors this Agreement with respect to a replacement director, propose or nominate, or cause or knowingly encourage any Person to propose or nominate, any candidates to stand for election to the Company (as such terms are defined Board, or used under seek the Exchange Act) (other than a “solicitation” or acting as a “participant” in support removal of all any member of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Board;
(iic) form, join, encourage, influence, advise join or in any way otherwise participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group” (other than any group among some or all of the Affiliates of the Investor) within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock with any Person other than an Affiliate of the Investor, or deposit any shares of Common Stock in a voting trust or similar arrangement or subject them to any voting agreement or pooling arrangement with respect to any annual or special meeting of stockholders, (including any Section 13(d) Groupexcluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), or grant any proxy with respect to any shares of Common Stock (other than to a designated representative of the Company pursuant to a proxy statement of the Company) or otherwise act in concert with any Person with respect to the Common Stock (other than Affiliates of the Investor); provided, however, that the foregoing restrictions do not apply to any vote or other action that is consistent with the Company’s management’s recommendation in connection with such matter;
(d) seek to call, or to request the call of, or call a special meeting of the stockholders of the Company, or make a request for a list of the Company’s stockholders or other Company records;
(e) otherwise act, alone or in concert with others, to control or seek to control, to seek representation on, or to influence or seek to influence, whether through swap or hedging transactions litigation or otherwise, the management, the Board or the policies of the Company; provided, however, that nothing herein shall prohibit the Investor from complying with legal or regulatory requirements, including, without limitation, the filing of any report or schedule required to be filed with the SEC, and provided, further that, notwithstanding anything to the contrary in this paragraph (e) or elsewhere in this Agreement, the Investor and its Affiliates may privately communicate their views to the management or the Board;
(f) without the prior approval of the Board, effect, seek to effect or in any way assist or facilitate any other Person in effecting or seeking to effect any: (i) tender offer or exchange offer to acquire securities of the Company; (ii) acquisition of any interest in any material asset or business of the Company or any rights decoupled from the underlying securities of its subsidiaries; (iii) merger, acquisition, share exchange or other business combination involving the Company that would result in or any of its subsidiaries; or (Aiv) recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the PW Group Shareholders (together with Company or any of its subsidiaries or material portion of its or their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stockbusinesses;
(ivg) other than through open market broker sale transactions where the identity of the purchaser is unknown to the Investor, sell, offer or agree to sell, sell directly or indirectly, through any swap or hedging transactions transaction or otherwise, the securities any security of the Company or any rights right decoupled from the such underlying securities security held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates Investor to any Third Party Person (as defined belowother than a Person who is an Affiliate of the Investor) that to the Investor’s knowledge would knowingly result in such Third PartyPerson, together with its Affiliates and AssociatesAffiliates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of 10% or more of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock time or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders Investor’s knowledge would result in writing that as a result the increase of the transaction it will file a Schedule 13G with respect to its beneficial or other ownership interest of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Partyany Person who, together with its Affiliates and AssociatesAffiliates, will not, after giving effect to such transaction, own, control has a beneficial or otherwise have beneficial other ownership in more than 10% interest in the aggregate of 10% or more of the shares of the Common Stock outstanding at such time, or (B) any except in each case in a transaction approved by written consent the Board (it being understood and agreed that the Investor shall have no obligation to investigate or inquire as to the shareholdings of a majority of any counterparty to open market or underwritten sales by the Board, excluding the Nominees and their ReplacementsInvestor or sales through “bought deals”);
(vh) 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, liquidation, dissolution or other extraordinary transaction involving request that the Company or any of its subsidiaries Representatives amend or joint ventures waive any provision of this Section 3; or
(i) otherwise take, or solicit, cause or encourage others to take, any action inconsistent with any of their respective securities (eachthe foregoing. Notwithstanding anything to the contrary, an “Extraordinary Transaction”), nothing in this Agreement shall prohibit or make restrict any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock director of the Company; provided, thatincluding the New Nominee, in the case of (B) from exercising his or her rights and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act fiduciary duties as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs director of the Company);.
Appears in 1 contract
Samples: Director Nomination Agreement (Forestar Group Inc.)
Standstill. (a) Each The Biglari Group agrees that, during the Covered Period (as defined below), unless specifically requested in writing by the Company or a majority of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”)Board, except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willshall not, and it will shall cause each of its Affiliates and Associates the members of the Biglari Group not to, directly or indirectly (including through its advisors, agents, representatives or third parties), in any manner, alone or in concert with others:
(i) (A) (x) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are term is used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of promulgated under the Exchange Act) or consents to vote, or (y) seek to advise, knowingly encourage or knowingly influence any person with respect to the voting of of, or consents to vote, any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) including for the election of individuals to the Board or shareholder proposals or any “withhold” campaign with respect to approve shareholder proposalsthe election of individuals to the Board or otherwise, or (B) 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) (), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting, (C) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise), or (D) grant a proxy with respect to its Common Stock to any person not a party to this Agreement, a director or officer of the Company, a member of the Biglari Group or a Biglari Representative (as defined below) (a “Third Party”);
(ii) disclose publicly its voting or consent intentions or votes or consents as to matters submitted to a shareholder vote or action by written consent during the Covered Period, except to the extent legally required;
(iii) (A) form, join, knowingly encourage, knowingly influence, advise advise, act in concert with or in participate in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some who are not members of the persons identified on the Biglari Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company or otherwise in any manner its securities or (B) 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 or consent to vote thereof, except as expressly set forth in this Agreement;
(iiiiv) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Biglari Group Shareholders (together with their Affiliates and Associates and owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.4914.99% in the aggregate of the shares voting power of Common Stock outstanding the stock of the Company or 14.99% of an economic position in the Company at such timetime (such percentage, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership“Ownership Limit”); provided, as determined in accordance with Rule 13d-3 of the Exchange Acthowever, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock securities to be sold to the extent such personsthe members of the Biglari Group, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons Ownership Limit under this paragraph solely as the result of a share repurchase or similar by the Company action that reduces the number of outstanding shares of Common Stock;
(ivv) except in a transaction approved by the Board or an open market broker sale transaction, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the any securities of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Biglari Group Shareholders or any of their Affiliates to any Third Party (as defined below) that would knowingly result in such Third Party, together with its Affiliates and AssociatesAffiliates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of five percent (5%) or more of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(vvi) effect sell, transfer, assign or seek convey, directly or indirectly, any rights decoupled from the underlying securities held by any member of the Biglari Group to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer ;
(vii) make or propose to effect, cause or participate insubmit, or in any way knowingly assist or knowingly facilitate any other person to effect make or seeksubmit, to the Company any offer or propose to effect or participate in, proposal for any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, restructuring, liquidation, separation, spin-off, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public (or reasonably expected to become public) statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the Biglari Group or any member thereof from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as other shareholders of the Company;
(viii) 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 any index fund, exchange traded fund, benchmark fund or broad basket of securities) 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;
(ix) (A) preclude call or seek to call any meeting of shareholders, including by written consent, (B) seek representation on the tender by any PW Group Shareholders Board, except as set forth herein, (C) seek the removal or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof election of any member of the Board or management, other than in accordance with any recommendation of the Board, (D) solicit consents from shareholders or otherwise act or seek to act by written consent, other than in accordance with any recommendation of the Board, (E) conduct a referendum of shareholders, or (F) make a request for any shareholder list or other Company books and records, whether pursuant to the TBCA or otherwise;
(x) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent any of the members of the Biglari Group from (i) bringing litigation against the Company to enforce any provision of this Agreement, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against any of the members of the Biglari Group, (iii) exercising statutory appraisal rights or (iv) responding to or complying with validly issued legal process;
(xi) make any public (or reasonably expected to become public) proposal or request with respect to: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals with respect to any change in the Board, including the number or term of directors or the filling of any vacancies on the Board other than as provided under Section 1 of this Agreement, (B) any change in the capitalization, dividend, share repurchase or capital allocation policies of the Company, (C) any change in the Company’s management, business or corporate structure, (D) any waiver, amendment or modification to the Amended and Restated Charter or Second Amended and Restated Bylaws, (E) causing a class of securities of the Company into any tender or exchange offerto be delisted from, or vote by to cease to be authorized to be quoted on, any PW Group Shareholders securities exchange or XX Xxxx Group Shareholders or an Affiliate or Associate thereof (F) causing a class of any equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(xii) make any public (or reasonably expected to become 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;
(xiii) make any public (or reasonably expected to become public) disclosure, announcement or statement to take any of the foregoing actions or initiate or enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets 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;
(xiv) initiate discussions with any current or former employee (with respect to former employees, limited to corporate officers or above whose employment ceased within one year prior to any such discussions) at the Company if other than the sale then-serving Chief Executive Officer, the Chief Financial Officer, the General Counsel or the Chair of the Board as set forth in the proviso set forth below regarding permitted private communications;
(xv) enter into any negotiations, agreements, contracts, arrangements or understandings, whether oral or written, formal or informal, with any Third Party to take any action that any of the member of the Biglari Group is prohibited from taking pursuant to this Section 2(a), including assisting, directing or influencing any such Third Party to take any such action; or
(xvi) request, directly or indirectly, any amendment or waiver of the foregoing; provided, that the foregoing restrictions in this Section 2(a) shall not be deemed to prohibit the Biglari Group from communicating privately with the Company’s Chief Executive Officer, Chief Financial Officer, General Counsel and Chair of the Board, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such securities communications (including, for the avoidance of doubt, as a result of any filing, or assets is initiated any amendment of any filing, required to be made with the SEC arising from or related to such communication).
(b) During the Covered Period, each member of the Biglari Group shall 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 Company’s annual and special meetings of shareholders and at any adjournments or postponements thereof, or written consents entered into in lieu of such meetings, and vote in favor of all directors nominated by the Company through an open bidding processBoard for election at any such meeting or in any written consents entered into in lieu of any such meetings (including the Biglari Designee, or as applicable), and against any directors not nominated and recommended for election by the Board.
(Cc) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering Nothing in this Agreement shall be deemed to purchase limit the securities exercise in good faith by the Biglari Designee of the Company such person’s fiduciary duties in the event the Company enters into negotiations with such person’s capacity as a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock director of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);.
Appears in 1 contract
Samples: Nomination and Cooperation Agreement (Cracker Barrel Old Country Store, Inc)
Standstill. (a) Each member of the PW Group/XX Xxxx Altaris Group Shareholders solely on behalf agrees that, during the Covered Period, it shall not, and shall cause each of itself and its respective Affiliates and or Associates hereby severally and not jointly agrees that from (as such terms are defined in Rule 12b-2 promulgated by the date hereof until SEC under the termination Securities Exchange Act of this Agreement in accordance with Section 5 1934, as amended (the “Covered PeriodExchange Act”)) under the control of a member of the Altaris Group (collectively and individually, the “Altaris Group Affiliates”) not to (except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to), directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person person, other than any Altaris Group Affiliates, with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meetingstockholder meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement)) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise), other than as permitted hereby;
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) who are not Altaris Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangementarrangement (including lending any securities of the Company to any person for the purpose of allowing such person to vote such securities in connection with any stockholder vote of the Company), or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except other than as expressly set forth in this Agreementpermitted hereby;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Altaris Group Shareholders (together with their Affiliates and Associates and the Altaris Group Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.4910% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such personsthe Altaris Group and the Altaris Group Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock, as long as the beneficial or other ownership interest of the Altaris Group does not increase thereafter (except solely as a result of corporate actions taken by the Company);
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude restrict the tender by the Altaris Group or any PW of its members or any Altaris Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit the Altaris Group or any PW of its members or any Altaris Group Shareholders Affiliate from privately (in a manner not reasonably expected to result in any public disclosure) advocating for such actions with the Board or XX Xxxx prohibit the Altaris Group Shareholders or any of its members or any Altaris Group Affiliate from privately (in a manner not reasonably expected to result in any public disclosure) engaging in discussions with any of their respective advisors and consultants regarding an Extraordinary Transaction or Associate thereof from offering to purchase securities participating in such transaction or assets of the Company if the sale of such securities or assets is initiated any other actions approved by the Company through an open bidding processBoard, or (C) prohibit restrict the receipt of any PW consideration by the Altaris Group Shareholders or XX Xxxx an Altaris Group Shareholders Affiliate on the same basis as other stockholders of the Company in connection with an Extraordinary Transaction;
(v) engage in any short sale or Affiliate any purchase, sale or Associate thereof from offering grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any hedging, put or call option or “swap” transaction) with respect to purchase the any securities of the Company (other than a broad-based market basket or index);
(vi) (A) seek representation on or nominate any candidate to, the Board, except as set forth herein, (B) seek or encourage the removal of any member of the Board, (C) conduct a referendum of stockholders, or (D) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board, except as set forth herein; (B) any material change in the event 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 enters into negotiations waive or make amendments or modifications to the Company’s restated certificate of incorporation, as amended, or the Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, arrangement, plan or proposal with a Third Party regarding a respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) (A) commence, encourage or support any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors, or (B) take any action challenging the validity or enforceability of any of the provisions of this Section 2(a) or publicly disclose, or cause or facilitate the public disclosure (including the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purposes, plan or proposal to be acquired by take any action challenging the validity or enforceability of any provisions of this Section 2(a), in any such Third Partycase other than (w) litigation to enforce the provisions of this Agreement, (x) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against the Altaris Group or any of its members or any Altaris Group Affiliate, (y) the exercise of statutory appraisal, dissenters or similar rights under the Delaware General Corporation Law, and (z) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement;
(x) take any action which could cause or require the Company or any Affiliate of the Company to make a Third Party commences public announcement regarding any of the foregoing (other than as permitted under subclauses (w), (x), (y) or (z) of clause (ix) above), or publicly seek or request permission to do any of the foregoing;
(xi) request, directly or indirectly, that the Company or the Board or any of their respective representatives amend or waive any provision of this Section 2(a), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any party; or
(xii) enter into any discussions, 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 cause 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. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit (i) the Altaris Group and their 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 such communications; (ii) the New Director from taking any actions that may be taken solely in his capacity as a hostile member of the Board in accordance with his fiduciary duties to all stockholders of the Company so long as such actions are consistent with the Altaris Group’s and the New Director’s obligations and representations under the other sections of this Agreement; or (iii) the Altaris Group or any Altaris Group Affiliate from making any factual statement as required by applicable legal process, subpoena, or legal requirement from any governmental authority with competent 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 Altaris Group or any Altaris Group Affiliate). Notwithstanding anything to the contrary in this Agreement, if the Board (or any committee thereof) determines to initiate any process to consider an Extraordinary Transaction (including the engagement of an investment banker) that would involve a sale of 50% or more of the Company’s equity securities or assets (which transaction may be structured as a sale of assets, sale of equity interests, merger, consolidation, tender offer or other business combination), the Company will ensure that all members of the Board are promptly notified of any such determination. Notwithstanding anything to acquire all the contrary in this Agreement, the Covered Period shall terminate automatically (and the provisions applicable during the Covered Period shall no longer be applicable) upon (a) any person (other than one or substantially all more members of the Altaris Group or Altaris Group Affiliates) becoming the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) or constructive economic owner (through swaps, options, similar securities or contracts or otherwise), directly or indirectly, of more than 50% of the Company’s then outstanding Common Stock, (b) announcement of a tender or exchange offer by any third party (other than one or more members of the Altaris Group or Altaris Group Affiliates) for Common Stock of the Company that, if consummated, would make such person the beneficial owner (as defined in Section 13(d)(1) of the Exchange Act) of 50% or more of the Common Stock of the Company; provided, thator any rights or options to acquire such ownership, in including from a third party, but only if the case Board does not publicly recommend against such tender or exchange offer within ten business days of such announcement, or (Bc) and (C) above, the PW Group Shareholders or, in the event that Company entering into one or more of definitive agreements involving the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that by one or more third parties (other than one or more members of the Nominees Altaris Group or their Replacements are employees of, Altaris Group Affiliates) of more than 50% of the outstanding Common Stock of the Company or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs more than 50% of the Company);’s consolidated total assets.
(b) For purposes of this Agreement:
Appears in 1 contract
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly Investor agrees that that, from the date hereof until the termination of this Agreement in accordance with Section 5 (until the “Covered expiration of the Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates or Family Members will, and it will cause each of its Affiliates and Associates and Family Members not to, directly or indirectly 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:
(i) makesubmit any stockholder proposal pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, engage inas amended (the “Exchange Act”), or in otherwise, or any way participate innotice of nomination or other business for consideration, or nominate any candidate for election to the Board;
(ii) engage, directly or indirectly, in any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or consents proposal of the Board, or recommend or request or induce or attempt to vote, induce or seek to advise, encourage or influence any other person with respect to the voting of any securities voting stock of the Company (including any withholding from voting) or grant a proxy with respect to the voting of any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities voting stock of the Company”) for the election of individuals Company to any person other than to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for persons appointed as proxies by the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Board;
(iiiii) seek to call, or to request the call of, a special meeting of the Company’s stockholders;
(iv) make a request for a list of the Company’s stockholders or for any books and records of the Company;
(v) form, join, encourage, influence, advise join in or in any other way participate in any a “partnership, limited partnership, syndicate or other group” (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes with respect to the voting stock of this Agreement, any such group, a “Section 13(d) Group”) with any persons the Company (other than a Section 13(d) Group “group” that includes consists solely of all or some of the persons identified on the Group 13Ds parties to this Agreement or any of their respective Affiliates or Associates);
(as defined belowvi) as deposit any shares of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities 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, other than any such voting trust, arrangement or agreement solely among the Investors and otherwise in accordance with this Agreement;
(vii) vote for any manner 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;
(viii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board or the committees of the Board;
(ix) acquire or agree, attemptoffer, seek or propose to deposit acquire, or cause to be acquired, ownership (including beneficial ownership) of any securities of the assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(x) other than at the express written request of the Board, seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in any voting trust structure or composition of the Board, change in the executive officers of the Company, change to the Company’s organization documents, change in capital structure, recapitalization, dividend or distribution or change in dividend or distribution policy, share repurchase or similar arrangementtransaction involving the Company, its subsidiaries or subject its business, whether or not any securities such transaction involves a change of control of the Company Company; provided, however, nothing herein shall limit the ability of the Investors to any arrangement disclose, publicly or agreement 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 voting thereofapproval of shareholders, except and the reasons therefor, so long as expressly set forth any such activity is otherwise in compliance with the requirements of this Agreement;
(iiixi) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions purchase or otherwise, beneficial ownership of any securities voting stock of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (that, together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipvoting stock beneficially owned by such person or entity, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% represents in the aggregate (amongst all of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates Investors and any other persons with whom they may be a Section 13(dAffiliate or Associate of any Investor) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 excess of 9.9% of the Exchange ActCompany’s outstanding voting stock;
(xii) disclose publicly, over more than 17.49% or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the aggregate foregoing or publicly request or advance any proposal to amend, modify or waive the terms of the shares of Common Stock outstanding at such timethis Agreement; provided that nothing herein will require Common Stock to be sold the Investors may make confidential requests to the extent Board to amend, modify or waive any provision of this Section 3, which the Board may accept or reject in its sole discretion, so long as any such personsrequest is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure of such request by the Company, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase Investors or similar Company action that reduces the number of outstanding shares of Common Stockany other person;
(ivxiii) sellinstitute, offer solicit, assist or agree to selljoin any litigation, 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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) that would knowingly result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial arbitration or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock proceeding against or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries current or joint ventures former directors or officers (including derivative actions), other than to enforce the provisions of this Agreement;
(xiv) take any action challenging the validity or enforceability of any provisions of this Section 3; or
(xv) enter into any negotiations, discussions, agreement, arrangement or understanding with any person concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the Investors from: (A) communicating privately with the Board or the Chief Executive Officer of the Company regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (B) communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Section 3, or (C) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over the Investors or any of their respective securities Affiliates or Associates, provided that a breach by Investor of this Agreement is not the cause of the applicable requirement.
(each, an b) As used in this Agreement:
(i) the terms “Extraordinary Transaction”), 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 make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof Associates of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice person subsequent to the Company date of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company)this Agreement;
Appears in 1 contract
Samples: Settlement Agreement (Team Inc)
Standstill. (a) Each of Purchaser agrees that, during the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from Standstill Period (unless specifically requested in writing by the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Company), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willsuch Purchaser shall not, and it will shall cause each of its Affiliates and Associates (collectively and individually, the “Purchaser Affiliates,”) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board of Directors or to approve shareholder proposalsstockholder proposals that have not been authorized and approved, or recommended for approval, by the Board of Directors, 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) (for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any shareholder stockholder meeting) , or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not such Purchaser’s Purchaser Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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 set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders such Purchaser (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) such Purchaser’s Purchaser Affiliates), having beneficial ownership, as determined Beneficial Ownership in accordance with Rule 13d-3 of the Exchange Act, over more than 17.4912.5% in the aggregate of the shares of the Company Common Stock outstanding at such time, and (B) with respect to excluding any issuance by the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 Company of the Exchange Act, over more than 17.49% in the aggregate of the shares of Company Common Stock outstanding at such timeor options, warrants or other rights to acquire Common Stock (or the exercise thereof) to any SLG Affiliated Director as compensation for their membership on the Board of Directors; provided that nothing herein will require any Notes, shares of Company Common Stock or other securities to be sold to the extent such personsPurchaser and such Purchaser’s Purchaser Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar any other Company action actions that reduces the number of outstanding shares of Company Common Stock. For the avoidance of doubt, this Section 4.03(a)(iii) shall not restrict conversion of the Notes and shall not be violated by any conversion rate adjustment. For purposes of this Section 4.03(a)(iii), no securities Beneficially Owned by a portfolio company of such Purchaser or its Affiliates will be deemed to be Beneficially Owned by such Purchaser or any of its Affiliates only so long as (x) such portfolio company is not an Affiliate of such Purchaser for purposes of this Section 4.03 under the definition of “Affiliate” in this Agreement, (y) neither such Purchaser and nor any of its Purchaser Affiliates has encouraged, instructed, directed, assisted or advised such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither such Purchaser or any of its Affiliates is a member of a group (as such term is defined in Section 13(l)(3) of the Exchange Act) with that portfolio company with respect to any securities of the Company;
(iv) sell, offer or agree to selltransfer, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Notes or Company Common Stock Beneficially Owned by such Purchaser or its Affiliates or any economic or voting rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders such Purchaser or any of their its Affiliates to any Third Party (as defined below) that that, to the knowledge of such Purchaser at the time it enters into such transaction, would knowingly result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% Beneficial Ownership in the aggregate of more than 12.5% of the shares of Company Common Stock outstanding at such time; provided, howeverthat (x) such Purchaser or its Affiliates, as applicable, shall provide written notice to the Company if it has actual knowledge at the time of such transaction that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to such transfer, directly or indirectly, through swap or hedging transactions or otherwise, of its ownership of Notes or Company Common Stock or to any Third Party who represents to the PW Group/XX Xxxx Group Shareholders would result in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% having Beneficial Ownership in the aggregate of more than 9.9% of the shares of Company Common Stock outstanding at such timetime and (y) nothing in this clause (iv) shall in any way prohibit, limit or restrict any transfer (A) pursuant to a Permitted Loan or any foreclosure thereunder, (B) pursuant to a Third Party Tender/Exchange Offer or pursuant to a merger, consolidation or similar transaction entered into by the Company, (C) in a bona fide underwritten public offering (or an equivalent transaction under Rule 144A), in a block sale to one or more broker-dealers in connection with a transaction pursuant to Rule 144A or in a broker transaction pursuant to Rule 144 (provided that, in relation to any such Rule 144A offering or Rule 144 transaction, such Purchaser has not instructed or encouraged such initial purchaser, broker or broker dealer as applicable, to sell such Notes or Company Common Stock to a specific Third Party or class of Third Parties which would result in a violation of this clause (iv)), or (BD) any in a derivatives transaction approved by written consent entered into with, or purchased from, a bank, broker-dealer or other recognized derivatives dealer that is not a hedge fund or activist investor, or to the knowledge of such Purchaser, an Affiliate of a majority of the Board, excluding the Nominees and their Replacementshedge fund or activist investor;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of material all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders such Purchaser or XX Xxxx Group Shareholders or an its Purchaser Affiliate or an Associate thereof of any securities of the Company into any tender Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or exchange offer, or the vote by any PW Group Shareholders such Purchaser or XX Xxxx Group Shareholders or an its Purchaser Affiliate or Associate thereof of any voting securities of the Company with respect to any Extraordinary Transaction;
(vi) (A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) prohibit seek representation on the Board of Directors, except as expressly set forth herein, (C) seek the removal of any PW Group Shareholders member of the Board of Directors (other than an SLG Affiliated Director in accordance with Section 4.07), (D) solicit consents from stockholders or XX Xxxx Group Shareholders otherwise act or Affiliate or Associate thereof from offering seek to purchase securities or assets act by written consent with respect to the Company, (E) conduct a referendum of stockholders of the Company if or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the sale DGCL or otherwise;
(vii) take any action in support of such securities or assets is initiated by make any proposal or request that constitutes: (A) controlling or changing the Company through an open bidding processBoard of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, (C) prohibit any PW Group Shareholders other material change in the Company’s management, business or XX Xxxx Group Shareholders corporate structure, (D) seeking to have the Company waive or Affiliate make amendments or Associate thereof from offering modifications to purchase 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 equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make statements reasonably expected to disparage or cause to be disparaged the Company or its Subsidiaries or any of its current or former officers or directors in a manner reasonably expected to cause harm to such person and using a means of communication that is reasonably expected to be and results in a broad dissemination of such remarks (provided such Purchaser or its applicable Affiliates shall have an opportunity to publicly cure any such statement within two (2) Business Days after being informed by the event Company that such Purchaser or its Affiliates have breached this clause (viii));
(ix) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(x) enter into any discussions, 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
(xi) request, directly or indirectly, any amendment, modification or waiver of this Section 4.03 (including this clause (xi)), other than a confidential request made to the Company that would not reasonably be expected to require any public disclosure.
(b) The foregoing provisions of Section 4.03(a) shall not be deemed to prohibit a Purchaser or any of its Purchaser Affiliates or their respective directors, executive officers, partners, employees or managing members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; provided that no such person may request, directly or indirectly, any amendment, modification or waiver of this Section 4.03 (including Section 4.03(a)(xi) and this Section 4.03(b)).
(c) Nothing in this Section 4.03 shall limit any actions that may be taken by any SLG Affiliated Director acting solely as a director of the Company consistent with his fiduciary duties as a director of the Company.
(d) Notwithstanding anything in this Section 4.03 to the contrary, if (i) the Company enters into negotiations a definitive agreement providing for a transaction that, if consummated, would result in a Change in Control and (ii) the Company had not, reasonably prior to entering into such definitive agreement, provided the Purchasers with a Third Party regarding written notice inviting the Purchaser Affiliates to make one or more proposals or offers to effect a proposal transaction that would result in Change in Control, then after the announcement of such transaction and prior to be acquired by the earlier of any termination of such Third Partydefinitive agreement or Company stockholder approval of such definitive agreement, nothing in this Section 4.03 will prevent the Purchaser Affiliates (A) from submitting to the Board of Directors one or a Third Party commences a hostile tender offer to acquire all more bona fide proposals or substantially all of the Common Stock of the Company; providedoffers for an alternative transaction involving, thatdirectly or indirectly, in the case of one or more Purchaser Affiliates, (B) pursuing and entering into any such alternative transaction with the Company and (C) abovetaking any actions in furtherance of the foregoing, including actions relating to obtaining equity and/or debt financing for the alternative transaction as long as (x) any proposal or offer is conditioned on the proposed transaction being approved by the Board of Directors and (y) the Purchaser Affiliates do not make any public announcement or disclosure of such proposal, offer or actions other than any filings and disclosures that may be required in filings with the SEC.
(e) For purposes of this Section 4.03 only and notwithstanding anything herein to the contrary, in calculating any Purchaser’s or any Third Party’s Beneficial Ownership of shares of the Company Common Stock, the PW Group Shareholders or, in the event that one or more number of shares of Company Common Stock issuable upon conversion of the Nominees or their Replacements are officersNotes Beneficially Owned by each Purchaser and its Affiliates as of any date shall be, directors or employees offor each $1,000 principal amount of the Notes, or Disclosing Nominees the sum of the Daily Share Amount (after giving effect to the applicable Cash Percentage then in effect) for the applicable Observation Period as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice and calculated pursuant to the Company of its election to act Indenture as if such Note was being converted on such date (and assuming all such Notes would be converted by a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Companysingle holder);.
Appears in 1 contract
Standstill. (a) Each Mill Road agrees that, during the Standstill Period (as defined below), (unless specifically requested in writing by the Company, acting through a resolution of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and Board not jointly agrees that from including the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) that is controlled by or under common control with Mill Road (collectively (with Mill Road) and individually, the “Mill Road Affiliates”, which for avoidance of doubt shall be deemed to include the general partner of Mill Road, any management company that controls Mill Road, any members of the board of directors, managing directors, general partners, managers or managing members (or substantial equivalent) of any such general partner or management company, and it will cause each of its Affiliates and Associates any Affiliate or Associate that is controlled by or under common control with such general partner or management company), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, vote or seek to knowingly advise, encourage or seek to influence any person (other than Mill Road Affiliates) with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) stockholder meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);otherwise);
(ii) form, join, encourage, influence, advise or in any way knowingly participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not Mill Road Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company Company, or knowingly advise, encourage or seek to influence any such “group” in a manner inconsistent with any recommendation of the Board with respect thereto 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 thereofthereof (including by granting any proxy, consent or other authority to vote (other than proxies solicited by the Board) but excluding any customary brokerage account, margin account, prime brokerage account or the like), except as expressly set forth in this Agreement;Agreement;
(iii) except with the prior written consent of the Chair of the Board of Directors of the Company, knowingly acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group)group, through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders Mill Road (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(dthe Mill Road Affiliates) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5excess of 17.0% in the aggregate of the shares of Common Stock outstanding at such time; time; provided, howeverthat, nothing herein will require Common Stock to be sold to the extent that the foregoing restriction shall not apply to Mill Road Affiliates, collectively, exceed the ownership limit under this clause (Aiii) any transaction with a Third Party who already has a Schedule 13G on file with as the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control share repurchase or otherwise have beneficial ownership in more than 10% other reduction in the aggregate number of the outstanding shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;Stock;
(viv) 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)effect, offer or propose to effect, cause or knowingly participate in, in (or in any way knowingly assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, ) any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or a material amount of any of their respective assets or businesses (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; Transaction”); provided, however, that this clause (iv) shall not (A) preclude the tender (or action not to tender) by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof the Mill Road Affiliates of any securities of the Company into any tender or exchange offer, offer or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof the Mill Road Affiliates of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit Transaction or any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase other participation in any Extraordinary Transaction by the Mill Road Affiliates as holders of securities or assets of the Company if on substantially the same terms as other similarly situated holders of securities of the Company;
(v) engage in any short sale or any purchase, sale or grant of such securities or assets is initiated by the Company through an open bidding processany option, warrant, convertible security, stock appreciation right, or other similar right (Cincluding any put or call option or “swap” transaction) prohibit with respect to any PW Group Shareholders security (other than a broad-based market basket or XX Xxxx Group Shareholders index) that Mill Road knows to derive any significant part of its value from a decline in the market price or Affiliate or Associate thereof from offering to purchase value of the securities of the Company in Company;
(vi) call or request the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all calling of the Common Stock any meeting of stockholders of the Company; provided, thatincluding by written consent, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees ofseek representation on, or Disclosing Nominees (as defined below) nominate any candidate to, the XX Xxxx Group ShareholdersBoard, except as set forth herein, seek the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company removal of its election to act as a potential bidder for the Company within 10 days any member of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement , solicit consents from stockholders of the commencement Company or otherwise take corporate action by written consent of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more stockholders of the Nominees Company in a manner inconsistent with the recommendation of the Board, conduct a referendum of stockholders of the Company, present at any annual meeting or their Replacements are employees of, or Disclosing Nominees to, any special meeting of the XX Xxxx Group Shareholders, Company’s stockholders (provided that at any such meeting the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right Designee may respond to participate questions directed to Designee in his capacity as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs director of the Company);, or make a request for any stockholder list of the Company;
(vii) take any material action in support of or make any proposal or request that constitutes: 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; any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company; any other material change in the Company’s management, business or corporate structure; seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or its by-laws, or other actions, that would reasonably be expected to impede or facilitate the acquisition of control of the Company by any person; 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 causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) knowingly enter into any discussions, negotiations, agreements or understandings with any third party to take any action with respect to any action prohibited by this Section 2(a), or advise, assist, knowingly encourage or seek to persuade any third party to take any action or make any public statement with respect to any action prohibited by this Section 2(a), or otherwise take or cause any action or make any public statement inconsistent with this Section 2(a); or
(x) request, directly or indirectly, any amendment or waiver of the foregoing. Neither the foregoing provisions of this Section 2(a) nor any organizational document or agreement of the Company or Company Policy shall be deemed to prohibit the Mill Road Affiliates or the directors, officers, partners, employees, members, managers, agents or other representatives (acting in such capacity) (“Representatives”) of the Mill Road Affiliates from communicating privately with, or from privately requesting a waiver of any of the foregoing provisions of this Section 2(a) from, the Company’s Representatives so long as such communications or requests would not reasonably be expected to require any public disclosure of such communications or requests. For avoidance of doubt, this Section 2(a) shall not restrict the ability of the Designee, in his capacity as a director of the Company, to propose in any meeting of the Board or any committee thereof, or in any private communication with Representatives of the Company, that the Company take or refrain from taking any course of action contemplated by this Section 2(a).
(b) For purposes of this Agreement the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature.
Appears in 1 contract
Samples: Cooperation Agreement (Superior Industries International Inc)
Standstill. (a) Each member of the PW Group/XX Xxxx Kanen Group Shareholders solely on behalf agrees that, during the term of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any shall not, and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with othersthe “Kanen Affiliates”) to not:
(i) (A) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents consent to vote, vote or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meetingmeeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), (B) or make or be the a proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)) or (C) initiate, encourage or participate in any “withhold” or similar campaign, directly or indirectly;
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not Kanen Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the PW Group/XX Xxxx Kanen Group Shareholders or any of their Affiliates Kanen Affiliate to any person or entity not a (A) party to this agreement, (B) member of the Board, (C) officer of the Company or (D) a Kanen Affiliate (a “Third Party (as defined belowParty”) that would knowingly result in such Third Party, together with its Affiliates affiliates and Associatesassociates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 54.9% in the aggregate of the shares of Common Stock outstanding at such time; providedsuch, however, that the foregoing restriction shall not apply to (A) any transaction with except in a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(viv) 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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or frustrate or seek to frustrate any Extraordinary Transaction proposed or endorsed by the Company, or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the (x) tender (or action not to tender) by any PW the Kanen Group Shareholders or XX Xxxx Group Shareholders or an a Kanen Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or (y) vote by any PW the Kanen Group Shareholders or XX Xxxx Group Shareholders or an a Kanen Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary TransactionTransaction (in accordance with the terms of this Agreement);
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any 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;
(vi) (A) call or seek to call any meeting of shareholders, including by written consent, (B) prohibit seek representation on, or nominate any PW Group Shareholders candidate to, the Board, (C) seek the removal of any member of the Board, (D) solicit consents from shareholders or XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent, or Associate thereof from offering (E) conduct a referendum of shareholders;
(vii) take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board or management of the Company, including any plans or proposals to purchase securities change the number or assets term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices, capital or asset allocation programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s articles of incorporation or the by-laws, or other actions, that may impede or facilitate the acquisition of control of the Company if the sale by any person; (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any statement or announcement that constitutes an ad hominem attack on, or otherwise disparages or causes to be disparaged, the Company, any of the Company’s Affiliates, or any of the Company’s past, present or future officers or directors appointed during the term of this Agreement;
(ix) other than litigation to enforce the provisions of this Agreement, institute, solicit or assist or join as a party (or threaten to institute, solicit, assist or join as a party), any action, complaint, litigation, arbitration, or similar proceeding against or to which the Company, its Affiliates or any of their respective past, present or future directors, officers or employees appointed during the terms of this agreement (including derivative actions) is a party;
(x) 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;
(xi) enter into any discussions, negotiations, agreements or understandings with any Third Party to take any action 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;
(xii) take any action that would result in the event Kanen Group or any member becoming an Acquiring Person under the Company enters into negotiations with a Third Party regarding a proposal Rights Agreement; or
(xiii) request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 3(a) shall not be deemed to be acquired by prohibit the Kanen Group or its directors, officers, partners, employees, members or agents (acting in such Third Partycapacity) (“Representatives”) from communicating privately with, or from privately requesting a Third Party commences a hostile tender offer waiver of any of the foregoing provisions of this Section 3(a) from, the Company’s directors or officers, so long as such communications or requests are not intended to, and would not reasonably be expected to, require any public disclosure of such communications or requests. Each member of the Kanen Group further agrees that the foregoing provisions shall apply, mutatis mutandis, with respect to acquire all or substantially (x) any and all of the Common Stock Company’s subsidiaries and (y) any and all other entities in which the Company, to the knowledge of the Company; providedKanen Group, thatdirectly or indirectly, beneficially owns at least 20% of the outstanding capital stock, in the each case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act same extent as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided provisions apply with respect to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);.
Appears in 1 contract
Standstill. Each of the members of the Air T Group agrees that, during the Air T Standstill Period, and each of the members of the Biglari Group agrees that, during the Biglari Standstill Period, he or it will not, and he or it will cause each of such person’s Affiliates or agents or other persons acting on his or its behalf not to, and will use commercially reasonable efforts to cause his or its respective Associates not to:
(a) Each submit, or otherwise induce or encourage any other 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, and will not nominate any candidate for election to the Board or oppose the directors nominated by the Board;
(b) 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 PW 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 (i) with respect to the members of the Air T Group/XX Xxxx , solely with other members of the Air T Group Shareholders and/or one or more Affiliates of a member of the Air T Group, (ii) with respect to the members of the Biglari Group, solely on behalf with other members of itself the Biglari Group and/or one or more Affiliates of a member of the Biglari Group or (iii) to the extent such a group may be deemed to result between the members of the Air T Group and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor Company or any of its Affiliates or Associates will, between the members of the Biglari Group and it will cause each the Company or any of its Affiliates and Associates not toAffiliates, directly or indirectly in any mannereach case, alone or in concert with others:as a result of this Agreement;
(ic) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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) (), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board (including Swenson, Berning, Biglari and Xxxxxx) at any shareholder meeting) or make or be the proponent 2016 Annual Meeting of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Shareholders;
(iid) formseek, join, encourage, influence, advise or in any way participate in any “group” (capacity other than as such term is defined in Section 13(d)(3) a member of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a acting majority of the Board, excluding to call, or to request the Nominees and their Replacementscall of, a special meeting of the shareholders of the Company, or seek to make, or make, a shareholder proposal at any meeting of the shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce or encourage any other person to initiate such proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company;
(ve) in any capacity other than as a member of the acting majority of the Board, effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of their respective the media or securities (eachanalyst) of any intent, an “Extraordinary Transaction”)purpose, plan or proposal to obtain any waiver, or make consent under, or any public statement with respect to an Extraordinary Transaction; providedamendment of, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender provisions of Section 4(c) or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);this
Appears in 1 contract
Standstill. (a) Each member of the PW Group/XX Xxxx Àxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (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 Àxxx Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, and it will cause each of its Affiliates and Associates the “Àxxx Affiliates”), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not Àxxx Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Àxxx Group Shareholders (together with their Affiliates and Associates and the Àxxx Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.497.5% in the aggregate of the shares of Common Stock outstanding at such time; provided that provided, that, nothing herein will require Common Stock to be sold to the extent such personsthe Àxxx Group and the Àxxx Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the PW Group/XX Xxxx Àxxx Group Shareholders or any of their Affiliates Àxxx Affiliate to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company or (D) Àxxx Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party (as defined below) Party”), that would knowingly result in such Third Party, together with its Affiliates affiliates and Associatesassociates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 104.9% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any except in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW the Àxxx Group Shareholders or XX Xxxx Group Shareholders or an a Àxxx Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW the Àxxx Group Shareholders or XX Xxxx Group Shareholders or an a Àxxx Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction;
(vi) 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 securities of the Company;
(vii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation, on or nominate any PW Group Shareholders 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 XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent, (E) conduct a referendum of stockholders, or Associate thereof from offering (F) make a request for any stockholder list or other Company books and records, whether pursuant to purchase securities Section 220 of the DGCL or assets otherwise;
(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company if the sale by any person; (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event 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 enters to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) disparage or cause to be disparaged the Company or Affiliates thereof, any of its or their respective current or former officers, or any of its or their respective directors;
(x) 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;
(xi) enter into negotiations any discussions, negotiations, agreements, or understandings with a any Third Party regarding a 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
(xii) 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 Àxxx Group or its directors, officers, partners, employees, members or agents (acting 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 such communications.
(b) Each member of the Àxxx Group shall, during the Covered Period, cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any Àxxx 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 all such meetings they shall vote in favor of (i) all directors nominated by the Board for election at such meeting and (ii) in accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meeting, other than with respect to (a) an Extraordinary Transaction, (b) any proposed issuance of Company securities or (c) any proposal to be acquired by such Third Party, implement any takeover defense measures or a Third Party commences a hostile tender offer to acquire all any other proposal that would diminish or substantially otherwise impair in any material respect the rights of Company shareholders.
(c) The Àxxx Group acknowledges that the Àxxx Designee shall have all of the Common Stock rights and obligations, including fiduciary duties to the Company and its stockholders, of a director under applicable law and the Company’s organizational documents while the Àxxx Designee is serving on the Board. Notwithstanding the foregoing, nothing in this Section 2 shall limit any actions that may be taken by the Àxxx Designee acting solely as a director of the Company consistent with his fiduciary duties as a director of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);.
Appears in 1 contract
Samples: Cooperation Agreement (Ashe Capital Management, LP)
Standstill. The Executive agrees that, for the 12-month period immediately following his Date of Termination and provided the Company timely makes the payments described in subparagraph 10(c), without the consent of the Company:
(a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willExecutive will not, and it will cause each of its Affiliates his affiliates and Associates his respective Representatives (as defined below) not to, for or on behalf of the Executive, singly or as part of a group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), directly or indirectly indirectly: (i) in any mannermanner acquire or propose to acquire in excess of 5% of the voting securities of the Company or material assets of the Company or any rights to acquire in excess of 5% of such voting securities or any such material assets (other than upon the exercise of options or vesting of other awards granted by the Company on or prior to the Date of Termination), (ii) participate in any solicitation of proxies or become a participant in any election contest with respect to the Company or any of its subsidiaries, (iii) form, join or in any way participate in a group with respect to any voting securities of the Company or any of its subsidiaries, (iv) act in concert with any other entity with respect to any voting securities or otherwise act, alone or in concert with others:
(i) make, engage into seek or offer to control or influence, or in any way participate inmanner, directly the management, Board or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities policies of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectivelyof its subsidiaries, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(v) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable communicate 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 stockholders of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or with regard to any of their respective securities (each, an “Extraordinary Transaction”)the foregoing, or (vi) advise, assist or encourage any other person in connection with any of the foregoing; or
(b) unless specifically invited in writing by the Company, the Executive will not, and will cause each of his Representatives not to make any public statement announcement with respect to an Extraordinary Transaction; provided(i) any form of merger, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, consolidation, business combination, recapitalization, liquidation, dissolution, change of control or vote by other similar transaction with respect to the Company or any PW Group Shareholders of its subsidiaries, (ii) any request to amend, waive or XX Xxxx Group Shareholders terminate the provisions of this paragraph 10 or (iii) any proposal or other statement inconsistent with the terms of this paragraph 10. For purposes of this paragraph 10, the term “Representatives” includes the Executive’s agents, advisors or any other person or entity acting on behalf of the Executive in connection with any prohibited activity under subparagraph 10(a) (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and any representatives of his advisors).
(c) In consideration of the Executive’s agreement and compliance with the provisions of this paragraph 10, the Company shall pay to the Executive an Affiliate or Associate thereof amount equal to his annual Salary as in effect immediately prior to his Date of any securities Termination, which amount shall be paid in substantially equal installments over the one-year period immediately following the Date of Termination in accordance with the normal payroll practices of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);.
Appears in 1 contract
Samples: Employment Agreement (Prologis)
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely agrees that, during the Covered Period, it shall not, and shall cause each of its Affiliates, Associates (each as defined below) and each of its Representatives (as defined below) acting on behalf or at the behest of itself and XX Xxxx, its respective Affiliates and Associates hereby severally and or Associates, not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 to (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to), directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Securities Exchange ActAct of 1934, as amended) or consents to vote, or seek to advise, encourage or influence any person person, other than any Affiliates of XX Xxxx, with respect to the voting of any securities of the Company or any of its subsidiaries or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meetingstockholder meeting or voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement)) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise), other than as permitted hereby; provided, however, that nothing in this clause (i) or any other provision of this Agreement shall restrict or prevent XX Xxxx from supporting or engaging in solicitation activities relating to the 2021 Annual Meeting or any future annual or special meeting, to the extent such support or solicitation activities are consistent with the Company’s recommendations disclosed in the Company’s proxy statement prepared in connection with such annual or special meeting;
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some who are not Affiliates of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) XX Xxxx with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company in any voting trust or similar arrangementarrangement (including lending any securities of the Company to any person for the purpose of allowing such person to vote such securities in connection with any stockholder vote of the Company), or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except or grant any proxy, corporate representative appointment or power of attorney (or other consent or authorization with respect to any securities of the Company), other than as expressly set forth in this Agreementpermitted hereby;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, (x) any ownership, including, without limitation, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), in, (y) any economic interest in, or (z) any direct or indirect right to direct the voting or disposition of, in each of the foregoing cases, any securities of the Company or any rights decoupled from the underlying securities of the Company (other than a broad-based market basket or index transaction) that would result in (A) with respect to the PW Group Shareholders XX Xxxx (together with their any Affiliates and Associates and of XX Xxxx) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.499.9% 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 such personsXX Xxxx and any Affiliates of XX Xxxx, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock, as long as the beneficial or other ownership interest of XX Xxxx does not increase thereafter (except solely as a result of corporate actions taken by the Company);
(iv) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the any securities of the Company or any voting rights decoupled from the underlying securities held by of the PW Group/XX Xxxx Group Shareholders or any of their Affiliates Company to any Third Party (as defined below) third party that would knowingly result in such Third Partythird party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such the time; provided, however, that the foregoing restriction shall not apply to (Ax) any transaction with a Third Party third party (which shall exclude any party to this Agreement, any member of the Board or officer of the Company, and any Affiliate or Associate of XX Xxxx) who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party third party who represents to the PW Group/XX Xxxx Group Shareholders and the Company in writing that as a result of the such transaction it will file a Schedule 13G with respect to its ownership of Common Stock (provided that, unless such Third Party third party is an Institutional Stockholder institutional stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Partythird party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time), or (By) any transaction approved by written consent of a majority of the Board, Board (excluding the Nominees and their ReplacementsNew Director or any Replacement Director, if applicable); or agree or commit (whether or not in writing) to take any of the actions referred to in the foregoing clause;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the Transaction or tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer by Staples, Inc., USR Parent, Inc., Sycamore Partners Management L.P. or any of their respective Affiliates or Associates, or any person that is part of a “group” (as such term is defined in Section 13(d)(3) of the Exchange Act) with any of the foregoing (collectively, the “Staples Parties”), if the Board publicly recommends that the stockholders of the Company reject such tender or exchange offer, unless, at the time such securities are tendered, all conditions to the consummation of such tender or vote exchange offer have been satisfied (including the receipt of any required approvals under, and the termination or expiration of any applicable waiting period (and any extensions thereof) imposed under, applicable antitrust laws, and any financing condition), except for (x) any condition that the number of shares of common stock of the Company (taken together with any shares owned by the person making such offer) that would represent at least a majority of the shares of common stock of the Company outstanding as of immediately following the consummation of such offer have been validly tendered and not properly withdrawn in such offer and (y) any PW Group Shareholders or conditions that by their nature are to be satisfied at the time of the consummation of such offer, but subject to such conditions being capable of being satisfied at such time, provided, however, that neither this clause nor clause (iv) shall (A) prohibit XX Xxxx Group Shareholders or an any Affiliate or Associate thereof of XX Xxxx from tendering any securities of the Company into any tender or exchange offer with respect to any Extraordinary Transaction other than as set forth above in this sentence with respect to any tender or exchange offer by any of the Staples Parties; (B) prohibit XX Xxxx or any Affiliate of XX Xxxx from privately (in a manner not reasonably expected to result in any public disclosure) advocating for such actions with the Board or prohibit XX Xxxx or any Affiliate of XX Xxxx from privately (in a manner not reasonably expected to result in any public disclosure) engaging in discussions with any of their respective legal or financial advisors regarding an Extraordinary Transaction in accordance with the Confidentiality Agreement or, if approved by the Board, participating in such transaction or any other actions to the extent approved by the Board; or (C) restrict the receipt of any consideration by XX Xxxx or an Affiliate of XX Xxxx on the same basis as other stockholders of the Company in connection with an Extraordinary Transaction;
(vi) (A) seek representation on or nominate any candidate to the Board, except as set forth herein, (B) prohibit seek or encourage the removal of any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets member of the Company if the sale of such securities or assets is initiated by the Company through an open bidding processBoard, or (C) prohibit conduct a referendum of stockholders, (D) make a request for any PW Group Shareholders stockholder list or XX Xxxx Group Shareholders other Company books and records, whether pursuant to Section 220 of the Delaware General Corporation Law (“DGCL”) or Affiliate otherwise or Associate thereof from offering (E) seek or request the extension of any deadline for director nominations;
(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 any hedging, put or call option or “swap” transaction) with respect to purchase the any securities of the Company (other than a broad-based market basket or index transaction);
(viii) take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board, except as set forth herein; (B) any material change in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Partycapitalization, stock repurchase programs and practices or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock dividend policy of the Company; provided, that, (C) any other material change in the case Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s restated certificate of incorporation, as amended, or (except as set forth herein) the Amended and Restated Bylaws of the Company (the “Bylaws”), or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) make any public disclosure, announcement or statement regarding any intent, purpose, arrangement, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(x) (A) commence, encourage or support any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors, or (B) take any action challenging the validity or enforceability of any of the provisions of this Section 2(a) or publicly disclose, or cause or facilitate the public disclosure (including the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purposes, plan or proposal to take any action challenging the validity or enforceability of any provisions of this Section 2(a), in any such case other than (w) litigation to enforce the provisions of this Agreement, (x) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against XX Xxxx or any Affiliates of XX Xxxx, (y) the exercise of statutory appraisal, dissenters or similar rights under the DGCL and (Cz) bringing bona fide disputes that do not relate to the subject matter of this Agreement;
(xi) take any action which could cause or require the Company or any Affiliate of the Company to make a public announcement regarding any of the foregoing (other than as permitted under subclauses (w), (x), (y) or (z) of clause (ix) above), or publicly seek or request permission to do any of the PW Group Shareholders orforegoing;
(xii) make any public communication in opposition to (A) any merger, acquisition, amalgamation, recapitalization, restructuring, disposition, distribution, spin-off, asset sale, joint venture or other business combination or (B) any financing transaction, in each case involving the event Company or any of its Affiliates and approved by the Board;
(xiii) request, directly or indirectly, that one the Company or the Board or any of their respective representatives amend or waive any provision of this Section 2(a), other than through non-public communications with the Company that would not reasonably be expected to trigger public disclosure obligations for any party; or
(xiv) enter into any discussions, 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 cause 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. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit (i) XX Xxxx and its 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 such communications by any party; (ii) the New Director from taking any actions that may be taken solely in his or her capacity as a member of the Board in accordance with his or her fiduciary duties to all stockholders of the Company; or (iii) XX Xxxx or any Affiliate of XX Xxxx from making any factual statement as required by applicable legal process, subpoena, or legal requirement from any governmental authority with competent jurisdiction over the party from whom information is sought (so long as such request did not arise as a result of discretionary acts by XX Xxxx or any Affiliate of XX Xxxx). Notwithstanding anything to the contrary in this Agreement, if the Board (or any committee thereof) determines to initiate any process to consider an Extraordinary Transaction (including the engagement of an investment banker) that would involve a sale of 50% or more of the Nominees Company’s equity securities or their Replacements are officersassets (which transaction may be structured as a sale of assets, directors sale of equity interests, merger, consolidation, tender offer or employees of, or Disclosing Nominees (as defined below) toother business combination), the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days will ensure that all members of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offerBoard are promptly and, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to reasonably practicable, simultaneously notified of any such sale process and/or third party offers determination.
(“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs b) For purposes of the Company);this Agreement:
Appears in 1 contract
Samples: Cooperation Agreement (ODP Corp)
Standstill. During the Cooperation Period, each Investor will not, and will cause its respective representatives acting on their behalf (collectively with the Investors, the “Restricted Persons”) to not, directly or indirectly, without the prior consent, invitation, or authorization by the Company or the Board, in each case, in writing:
(a) Each acquire, or offer or agree to acquire, by purchase or otherwise, or direct any Third Party (as defined below) in the acquisition of record or beneficial ownership of any Voting Securities (as defined below) or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result in the Investors (together with their Affiliates) having beneficial ownership of more than 9.9% of the PW Group/XX Xxxx Group Shareholders solely on behalf Ordinary Shares outstanding at such time, or aggregate economic exposure to more than 15.0% of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the Ordinary Shares outstanding at such time;
(b) (i) requisition or call, or seek to requisition or call (publicly or otherwise), alone or in concert with others, a meeting of the Company’s shareholders (or the setting of a record date hereof until therefor), (ii) seek, alone or in concert with others, election or appointment to, or representation on, the termination of this Agreement in accordance with Section 5 (Board or nominate or propose the “Covered Period”)nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1(e) of this Agreement, neither it nor (iii) make, or be the proponent of, any shareholder proposal to the Company or the Board or any committee thereof (including any request to table any resolution, proposal or any other business at any annual general meeting of the Company or otherwise, or any proposal to amend any resolution of the Company), (iv) request the Company to circulate any statement to its Affiliates shareholders (in connection with a general meeting of the Company or Associates willotherwise), and it will cause each of its Affiliates and Associates not to(v) require the Company to publish on a website any statement relating to audit concerns, directly or indirectly in any manner(vi) seek, alone or in concert with others:others (including through any “withhold” or similar campaign), the removal of any member of the Board or (vii) conduct a referendum of shareholders of the Company; provided that nothing in this Agreement will prevent the Investors or their Affiliates from taking actions in furtherance of identifying any Replacement New Independent Director pursuant to Section 1(e), as applicable;
(ic) make, engage in, make any request for shareholder lists or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities other books and records of the Company or any securities convertible of its subsidiaries under any statutory or exchangeable into regulatory provisions, or exercisable other applicable law, providing for shareholder access to books and records of the Company or its Affiliates, nor exercise any such securities right conferred by English law or any federal or state law of the United States to: (collectively, “securities i) inspect or request a copy of the Company”’s register of shareholders, (ii) inspect or request a copy of the Company’s register of interests disclosed, (iii) require independent scrutiny of any vote conducted by way of a poll at any general meeting of the Company, (iv) apply for the election appointment of individuals an inspector to investigate the affairs or membership of the Company or (v) require the Company to exercise its powers under section 793 of the Companies Act;
(d) engage in any “solicitation” (as such term is defined under the Exchange Act (as defined below)) of proxies with respect to the Board election or removal of directors of the Company or any other matter or proposal relating to approve shareholder proposals, the Company 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(e) make or submit to the Company or any of its Affiliates any proposal for, or offer of (with or without conditions), either alone or in concert with others, any tender offer, takeover offer (whether structured by way of a scheme of arrangement under Part 26 of the Companies Act or otherwise), exchange offer, merger, consolidation, acquisition, sale of all or substantially all assets, business combination, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”) either publicly or in a manner that would reasonably require public disclosure by the Company or any of the Restricted Persons (it being understood that the foregoing shall not restrict the Restricted Persons from tendering shares in “a takeover offer”, voting in favor of a scheme of arrangement under Part 26 of the Companies Act, accepting a takeover offer as defined in Part 28 of the Companies Act, or giving irrevocable undertakings of letters of intent in respect of the same, receiving consideration or other payment for shares, or otherwise participating in any Extraordinary Transaction on the same basis as other shareholders of the Company);
(f) make any public proposal with respect to (i) any change in the number, term or identity of directors of the Company or the filling of any vacancies on the Board other than as provided under Section 1(e) of this Agreement, (ii) any change in the capitalization, capital allocation policy or dividend policy of the Company, (iii) any other change to the Board or the Company’s management or corporate or governance structure, (iv) any waiver, amendment or modification to the Articles or the Company’s other organizational documents, (v) causing the Ordinary Shares to be delisted from, or to cease to be authorized to be quoted on, any securities exchanges or (vi) causing the Ordinary Shares to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(g) knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any other person with respect to (i) the giving or withholding of any proxy relating to, or other authority to vote, any Voting Securities, or (ii) in conducting any type of referendum relating to the Company (including for the avoidance of doubt with respect to the Company’s management or the Board), other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter, or as otherwise specifically permitted under this Agreement;
(h) form, join or act in concert with any “group” as defined in Section 13(d)(3) of the Exchange Act for purposes of this AgreementAct, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities Voting Securities, other than solely with Affiliates of the Company Investors with respect to Voting Securities now or otherwise in any manner agreehereafter owned by them;
(i) enter into a voting trust, 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 any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the voting thereoflike), except as expressly set forth in each case other than (i) this Agreement, (ii) solely with Affiliates of the Investors or (iii) granting proxies in solicitations approved by the Board;
(iiij) acquireengage in any short sale or any purchase, offer sale, or propose grant of any option, warrant, convertible security, share appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to acquireany security (other than any index fund, exchange traded fund, benchmark fund or broad basket of securities) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of any of the securities of the Company and would, in the aggregate or individually, result in the Investors ceasing to have a “net long position” in the Company;
(k) sell, offer, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer all or agree to sellsubstantially all, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any voting rights decoupled from the underlying securities Ordinary Shares of the Company held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates a Restricted Person to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(vl) effect institute, solicit or seek to effect (includingjoin as a party any litigation, 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, liquidation, dissolution arbitration or other extraordinary transaction proceeding against or involving the Company or any of its subsidiaries or joint ventures or any of its or their respective securities current or former directors or officers (each, an “Extraordinary Transaction”including any derivative actions or the petition of any UK court pursuant to Part 30 of the Companies Act), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (Ai) preclude bringing litigation against the tender Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 14, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (iii) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (iv) exercising statutory rights of minority shareholders as set out in Part 28 of the Companies Act or (v) responding to or complying with validly issued legal process;
(m) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 3; or
(n) make any request or submit any proposal to amend or waive the terms of this Agreement (including this subclause), in each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal; provided, that the restrictions in this Section 3 shall terminate automatically upon the earliest of the following: (i) any material breach of this Agreement by the Company (including, without limitation, a failure to appoint the New Independent Director in accordance with Section 1(b), a failure to appoint a Replacement New Independent Director in accordance with Section 1(e), a failure to form the CEO Search Committee and appoint the New Independent Director to the CEO Search Committee in accordance with Section 1(g) or a failure to issue the Press Release in accordance with Section 5) upon five (5) business days’ written notice by any PW Group Shareholders of the Investors to the Company if such breach has not 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 or XX Xxxx Group Shareholders prior to the end of the notice period; (ii) the Company’s entry into (x) a definitive agreement with respect to any Extraordinary Transaction that, if consummated, would result in the acquisition by any person or group of more than 50% of the Voting Securities or assets having an Affiliate aggregate value exceeding 50% of the aggregate enterprise value of the Company, (y) one or more definitive agreements providing for the acquisition by the Company or its subsidiaries of one or more businesses or assets from any Third Parties having an Associate thereof aggregate value exceeding 25% of any securities the market capitalization of the Company into during the Cooperation Period or (z) one or more definitive agreements providing for a transaction or series of related transactions which would in the aggregate result in the Company issuing to one or more Third Parties at least 10% of the Ordinary Shares of the Company (including on an as-converted basis, and including other Voting Securities with comparable voting power) outstanding immediately prior to such issuance(s) (including in a PIPE, convertible note, convertible preferred security or similar structure) during the Cooperation Period (provided that securities issued as incentive compensation to employees or other service providers or consideration for (or in connection with) the acquisition of the assets, securities and/or business(es) of another person by the Company or one or more of its subsidiaries shall not be counted toward this clause (z)) and (iii) the commencement of any tender or exchange offer (by any person or group other than the Investors or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its shareholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act in response to the commencement of any tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this Section 3) will prohibit or vote by restrict any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company Restricted Persons from (A) making any public or private statement or announcement with respect to any Extraordinary TransactionTransaction that is publicly announced by the Company or a Third Party, (B) prohibit making any PW Group Shareholders factual statement to comply with any subpoena or XX Xxxx Group Shareholders other legal process or Affiliate respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or Associate thereof from offering to purchase securities or assets request did not arise as a result of the Company if the sale of such securities or assets is initiated discretionary acts by the Company through an open bidding processany Restricted Person), or (C) prohibit granting any PW Group Shareholders liens or XX Xxxx Group Shareholders encumbrances on any claims or Affiliate interests in favor of a bank or Associate thereof from offering to purchase 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, (D) negotiating, evaluating and/or trading, directly or indirectly, in any index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Company in the event or (E) communicating with the Company enters into negotiations privately in accordance with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);Section 4.
Appears in 1 contract
Samples: Cooperation Agreement (Sensata Technologies Holding PLC)
Standstill. (a) Each During the Cooperation Period, each of the PW Group/XX Converium and Xxxx Group Shareholders solely on behalf of itself will not, and will cause its respective Affiliates and Associates hereby severally its and not jointly agrees that from their respective Covered Persons and Representatives acting on their behalf (collectively with the date hereof until the termination of this Agreement in accordance with Section 5 (Stockholder Parties, the “Covered PeriodRestricted Persons”) to not, directly or indirectly, without the prior written consent, invitation, or authorization of or by the Company or the Board:
(i) acquire, or offer or agree to acquire, by purchase or otherwise, or direct any Third Party (as defined below) in the acquisition of record or beneficial ownership of any Voting Securities (as defined below), or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities, in each case, if such acquisition, offer, agreement or transaction would result, if consummated, in such Stockholder Party (solely together with its Affiliates) having aggregate beneficial ownership of, or aggregate economic or voting exposure to, more than 7.5% of the Company Common Shares outstanding at such time; provided that under no circumstance shall any Restricted Person exceed the ownership limitations set forth in and determined pursuant to Section 2 of the Company’s Articles of Incorporation, as amended;
(ii) (A) call or seek to call (publicly or otherwise), alone or in concert with others, a meeting of the Company’s stockholders or action by written consent (or the setting of a record date therefor), (B) 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 the Board, except as expressly set forth in this AgreementSection 1, neither it nor (C) make or be the proponent of any of its Affiliates stockholder proposal to the Company or Associates willthe Board or any committee thereof, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner(D) seek, alone or in concert with others:others (including through any “withhold” or similar campaign) the removal of any member of the Board or (E) conduct a referendum of stockholders of the Company;
(iiii) makemake any request for any stockholder list or similar materials or other books and records of the Company or any of its subsidiaries, whether pursuant to Sections 2-512 and 2-513 of the Maryland General Corporation Law or any other statutory or regulatory provisions providing for stockholder access to books and records of the Company or its Affiliates;
(iv) engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are term is used in the proxy rules promulgated under the Exchange Act (as defined below) but without giving effect to any of the exclusions from such definition under SEC but rules, including without regard limitation the exclusion relating to solicitations of ten (10) or fewer stockholders) of proxies or consents with respect to the exclusion set forth election or removal of directors of the Company or any other matter or proposal relating to the Company or become a “participant” (as such term is defined in Rule 14a-1(l)(2)(iv) Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(v) make or submit to the Company or any of its Affiliates any proposal for, or offer of (with or without conditions), either alone or in concert with others, any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) (each, an “Extraordinary Transaction”) either publicly or in a manner that would reasonably require public disclosure by the Company or any of the Stockholder Parties (it being understood that the foregoing shall not restrict the Restricted Persons from electing in their own discretion to tender or not tender shares, seeking and exercising statutory appraisal rights, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as other stockholders of the Company);
(vi) disclose, other than as is consistent with the Board’s recommendation in connection with such matter, to any Third Party, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, its voting or consent intentions or votes as to matters submitted to a stockholder vote during the Cooperation Period (it being understood that instructing Third Parties to implement such votes or consents to vote, or in a ministerial manner in accordance with this Agreement would not be a violation of this provision);
(vii) knowingly seek to advise, encourage or influence any person Third Party, other than as is consistent with the Board’s recommendation on such matter, with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company;
(viii) take any action in support of or make any proposal, announcement or request, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, with respect to, (A) any change in the number, term or identity of directors of the Company or the filling of any securities convertible vacancies on the Board other than as provided under Section 1, (B) any change in the business, capitalization, capital allocation policy or exchangeable into or exercisable for any such securities (collectively, “securities dividend policy of the Company”, (C) for the election of individuals any other change to the Board or the Company’s management or corporate or governance structure, (D) any waiver, amendment or modification to approve shareholder proposalsthe Organizational Documents, (E) causing the Company Common Shares 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 a “participant” eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any contested “solicitation” for the election of directors other person (A) with respect to the giving or withholding of any proxy or consent relating to, or other authority to vote, any Voting Securities, or (B) in conducting any type of referendum relating to the Company (as such terms are defined including for the avoidance of doubt with respect to the Company’s management or used under the Exchange ActBoard) (other than a “solicitation” such encouragement or acting advice that is consistent with the Board’s recommendation in connection with such matter, or as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 otherwise specifically permitted under the Exchange Act or otherwisethis Agreement);
(iix) form, join, encourage, influence, advise or act in any way participate in concert with any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this AgreementAct, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities Voting Securities, other than solely with the Stockholder Parties and the respective Affiliates of the Company Stockholder Parties with respect to Voting Securities now or otherwise in any manner agreehereafter owned by them;
(xi) enter into a voting trust, 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 any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the voting thereoflike), except as expressly set forth in each case other than (A) this Agreement, (B) solely with the Stockholder Parties and the respective Affiliates of the Stockholder Parties or (C) granting proxies in solicitations approved by the Board;
(iiixii) acquiresell, offer or propose to acquireoffer, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer all or agree to sellsubstantially all, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any voting rights decoupled from the underlying securities Company Common Shares held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates a Restricted Person to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(vxiii) effect institute, solicit or seek to effect (includingjoin, 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 inas a party, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inknowingly assist, any tender or exchange offerlitigation, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution arbitration or other extraordinary transaction proceeding against or involving the Company or any of its subsidiaries or joint ventures or any of its or their respective securities current or former directors or officers (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transactionincluding derivative actions) in their capacities as such; provided, however, that this clause for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (A) preclude bringing litigation against the tender Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 10, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing or participating in bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights or (E) responding to or complying with validly issued legal process;
(xiv) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(c); or
(xv) make any request or submit any proposal to amend or waive the terms of this Agreement (including this subclause), in each case publicly or which would reasonably be expected to result in a public announcement or disclosure of such request or proposal by the Company or any of the Restricted Persons. The restrictions in this Section 2 shall terminate automatically upon the earliest of the following: (i) any material breach of this Agreement by the Company (including, without limitation, a failure to appoint the New Director (or any Replacement Director) to the Board, the Audit Committee or the Compensation Committee in accordance with Section 1 or a failure to issue the Press Release in accordance with Section 3) upon five (5) business days’ written notice by any PW Group Shareholders of the Stockholder Parties to the Company if such breach has not been cured within such notice period (or XX Xxxx Group Shareholders immediately upon receipt of such notice if such breach is incapable of being cured), provided that the Stockholder Party (A) specifies in such written notice, in reasonable detail, the material breach on which they are relying to terminate its obligations under this Section 2 and (B) the Stockholder Parties are 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 Company’s entry into a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities or assets having an Affiliate or an Associate thereof aggregate value exceeding 50% of any securities the aggregate enterprise value of the Company into and (iii) the commencement of any tender or exchange offer (by any person or group other than the Stockholder Parties or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, where the Company files with the SEC a Schedule 14D-9 (or amendment thereto) that does not recommend that its stockholders reject such tender or exchange offer (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act in response to the commencement of any tender or exchange offer). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including, but not limited to, the restrictions in this Section 2(c)) will prohibit or vote restrict any of the Restricted Persons from (A) making any factual statement to comply with any subpoena or other legal process or to respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any PW Group Shareholders Restricted Person), (B) making any public or XX Xxxx Group Shareholders private statement or announcement with respect to an Affiliate Extraordinary Transaction that is publicly announced by the Company or Associate thereof of any securities of by a Third Party that is party to an agreement with the Company with respect to any such Extraordinary Transaction, (BC) prohibit granting any PW Group Shareholders liens or XX Xxxx Group Shareholders encumbrances on any claims or Affiliate interests in favor of a bank or Associate thereof from offering to purchase securities broker-dealer or assets 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 Company if the sale of such securities custody or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholdersprime brokerage agreement(s), as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process (D) negotiating, evaluating and/or trading, directly or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders orindirectly, in any index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the event that one or more of the Nominees or their Replacements are employees performance of, or Disclosing Nominees tobut not primarily consist of, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs securities of the Company, (E) providing its views privately to the Board or management regarding any matter, or privately requesting a waiver of any provision of this Agreement, as long as such private communications or requests would not reasonably be expected to require public disclosure of such communications or requests by the Company or any of the Restricted Persons or (F) taking actions in furtherance of identifying Additional Director or Replacement Director candidates in accordance with this Agreement (including Section 1(b)(ii);) so long as such actions are undertaken on a confidential basis. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the New Director in his exercise of his fiduciary duties.
Appears in 1 contract
Standstill. (a) Each of the PW Group/XX Xxxx The Xxxxxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that that, from the date hereof until the termination of this Agreement in accordance with Section 5 (until the “Covered expiration of the Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates or Family Members will, and it will cause each of its Affiliates and Associates and Family Members not to, directly or indirectly 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:
(ia) makesubmit any stockholder proposal pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, engage inas amended (the “Exchange Act”), or in otherwise, or any way participate innotice of nomination or other business for consideration, or nominate any candidate for election to the Board;
(b) engage, directly or indirectly, in any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or consents proposal of the Board, or recommend or request or induce or attempt to vote, induce or seek to advise, encourage or influence any other person with respect to the voting of any securities voting stock of the Company (including any withholding from voting) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become grant a “participant” in any contested “solicitation” for the election of directors proxy with respect to the Company (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 shareholder meeting) or make or be the proponent voting of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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 stock of the Company to any arrangement or agreement with respect person other than to the voting thereof, except Board or persons appointed as expressly set forth in this Agreementproxies by the Board;
(iiic) acquire, offer or propose seek to acquirecall, or agree to acquirerequest the call of, directly a special meeting of the Company’s stockholders;
(d) make a request for a list of the Company’s stockholders or indirectlyfor any books and records of the Company;
(e) form, whether by purchase, tender join in or exchange offer, through the acquisition of control of another person, by joining in any other way participate in a “partnership, limited partnership, syndicate or other group group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting stock of the Company (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);
(f) deposit 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, other than any such voting trust, arrangement or agreement solely among the Investors and otherwise in accordance with this Agreement;
(g) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or Observer 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;
(h) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any Section 13(d) Group), through swap of the assets or hedging transactions or otherwise, any securities business of the Company or any rights decoupled or options to acquire any such assets or business from any person;
(i) other than at the underlying securities express written request of the Company that would result in (A) Board, seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipCompany’s organization documents, as determined change in accordance with Rule 13d-3 of the Exchange Actcapital structure, over more than 17.49% recapitalization, dividend or distribution or change in the aggregate of the shares of Common Stock outstanding at such timedividend or distribution policy, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces transaction involving the number Company, its subsidiaries or its business, whether or not any such transaction involves a change of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities control of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such timeCompany; provided, however, that nothing herein shall limit the foregoing restriction shall not apply ability of the Investors to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC disclose, publicly or otherwise, how they intend to vote with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided thatannounced tender offer, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, liquidation, dissolution combination or other extraordinary 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;
(j) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive the terms of this Agreement; provided that the Investors may make confidential requests to the Board to amend, modify or waive any provision of this Section 3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure of such request by the Company, the Investors or any other person;
(k) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries current or joint ventures former directors or officers (including derivative actions), other than to enforce the provisions of this Agreement;
(l) take any action challenging the validity or enforceability of any provisions of this Section 3;
(m) enter into any negotiations, discussions, agreement, arrangement or understanding with any person concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities;
(n) make any public announcement or statement involving the Company or any of its officers, directors or Affiliates; or
(o) communicate with any employee of the Company about Company-related matters without the prior consent of the Chairman, as determined in his sole discretion. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the Xxxxxxx Group from: (A) communicating privately with the Board, Chief Executive Officer, Chief Financial Officer, the Chief Administrative 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, (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 securities (eachAffiliates or Associates, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, provided that a breach by Investor of this clause shall Agreement is not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities cause of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding processapplicable requirement, or (CD) prohibit voting any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities shares beneficially owned by any member of the Company Xxxxxxx Group in any way they deem appropriate. As used in this Agreement:
(i) the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) terms “Affiliate” and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, “Associate” shall have given written notice 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 any person subsequent to the Company date of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company)this Agreement;
Appears in 1 contract
Samples: Board Observer and Standstill Agreement (Hill International, Inc.)
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly Investor agrees that that, from the date hereof until the termination of this Agreement in accordance with Section 5 (until the “Covered expiration of the Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates or Family Members will, and it will cause each of its Affiliates and Associates and Family Members not to, directly or indirectly 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 of the following actions:
(i) makesubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, engage inas amended (the “Exchange Act”) or otherwise) or any notice of nomination or other business for consideration, or in nominate any way participate candidate for election to the Board;
(ii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or consents proposal of the Board, or recommend or request or induce or attempt to vote, induce or seek to advise, encourage or influence any other person with respect to the voting of any securities voting stock of the Company (including any withholding from voting) or grant a proxy with respect to the voting of any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities voting stock of the Company”) for the election of individuals Company to any person other than to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for persons appointed as proxies by the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise)Board;
(iiiii) seek to call, or to request the call of, a special meeting of the Company’s stockholders;
(iv) make a request for a list of the Company’s stockholders or for any books and records of the Company;
(v) form, join, encourage, influence, advise join in or in any other way participate in any a “partnership, limited partnership, syndicate or other group” (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes with respect to the voting stock of this Agreement, the Company or deposit any such group, shares of voting stock of the Company in a “Section 13(d) Group”) with voting trust or similar arrangement or subject any persons shares of voting stock of the Company to any voting agreement or pooling arrangement (other than a Section 13(d) Group “group” that includes consists solely of all or some of the persons identified in this Agreement or any of their respective Affiliates or Associates);
(vi) 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;
(vii) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Group 13Ds (as defined below) as Board or seek the removal of any member of the date hereof and their Affiliates and Associates, but not including any other entities Board or persons not identified on a change in the Group 13Ds as size or composition of the date hereofBoard or the committees thereof;
(viii) with respect to any securities of the Company acquire or otherwise in any manner agree, attemptoffer, seek or propose to deposit acquire, or cause to be acquired, ownership (including beneficial ownership) of any securities of the assets or business of the Company in or any voting trust rights or similar arrangement, options to acquire any such assets or subject business from any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreementperson;
(iiiix) other than at the direction of the Board or any committee thereof, seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend or distribution or change in dividend or distribution policy, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(x) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions purchase or otherwise, beneficial ownership of any securities voting stock of the Company or that, together any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipvoting stock beneficially owned thereby, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% represents in the aggregate (amongst all of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates Investors and any other persons with whom they may be a Section 13(dAffiliate or Associate thereof) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 excess of 4.9% of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock Company’s outstanding at such timevoting stock; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any voting rights decoupled from the underlying securities voting stock of the Company held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees Investors and their ReplacementsAffiliates, Associates and Family Members;
(vxi) 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 indisclose publicly, or privately in a manner that could reasonably be expected to become public, any way intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive the terms of this Agreement; provided that the Investors may make confidential requests to the Board to amend, modify or waive any provision of this Section 3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure thereof by the Company, the Investors or any other person;
(xii) institute, solicit, assist or facilitate join any other person to effect or seeklitigation, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution arbitration or other extraordinary transaction proceeding against or involving the Company or any of its subsidiaries current or joint ventures former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this Section 3 or otherwise take any action challenging the validity or enforceability of any provisions of this Section 3; or
(xiii) enter into any negotiations, discussions, agreement, arrangement or understanding with any person concerning any of the foregoing (other than this Agreement) or encourage or solicit any person to undertake any of the foregoing activities. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the Investors from: (A) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (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 securities (eachAffiliates or Associates, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, provided that a breach by Investor of this clause shall Agreement is not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities cause of the Company into applicable requirement. Furthermore, nothing in this Agreement shall be deemed to restrict in any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities way the ability of the Company with respect New Director (or any of his replacements selected pursuant to any Extraordinary Transaction, this Agreement) from fulfilling their statutory duties as directors.
(Bb) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of As used in this Agreement:
(i) the Company if terms “Affiliate” and “Associate” shall have the sale of such securities or assets is initiated respective meanings set forth in Rule 12b-2 promulgated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase SEC under the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company)Exchange Act;
Appears in 1 contract
Standstill. Investor hereby agrees that, without the prior approval of the Board (as defined in the Purchase Agreement), Investor shall not and shall not permit or cause any Affiliate (as defined in the Purchase Agreement) or Representative of Investor to:
(a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, acting alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender merger, business combination or exchange offerin any other manner, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate any voting securities or other group (including any Section 13(d) Group), through swap direct or hedging transactions or otherwise, indirect rights to acquire any securities of the Company or any rights decoupled from the underlying securities subsidiary thereof, or of any successor to or person in control of the Company that would result in (A) with respect to the PW Group Shareholders (if after such acquisition Investor, together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipits Affiliates, as determined in accordance with Rule 13d-3 would own more than 10% of the Exchange Act, over more than 17.49% in the aggregate outstanding capital stock of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 Company or voting power of the Exchange ActCompany, over more than 17.49% in the aggregate or any assets of the shares Company or any subsidiary or division thereof or of Common Stock outstanding at any such timesuccessor or controlling person; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result any investment by Investor or an Affiliate of a share repurchase Investor in third-party mutual funds or other similar Company action passive investment vehicles that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the hold interests in securities of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to be taken into account for the purpose of this subparagraph (Aa);
(b) enter into any transaction with a Third Party who already has a Schedule 13G on file with the SEC voting agreements, trusts or similar arrangements with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result voting securities of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more Company other than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacementsas set forth herein;
(vc) 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 inmake, or in any way assist participate, directly or facilitate indirectly, in any other “solicitation” of “proxies” to vote (as such terms are used in the rules promulgated by the Securities and Exchange Commission (the “Commission”)), or seek to advise or influence any person or entity with respect to effect the voting by any third party of any voting securities of the Company;
(d) make any public announcement, directly or seekindirectly, with respect to, or submit a proposal for, or offer of (with or propose to effect or participate in, without conditions) any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries securities or joint ventures assets;
(e) form, join or in any way participate in a “group” as defined in Section 13(d)(3) (a “13D Group”) of their respective securities the Securities Exchange Act of 1934, as amended (each, an the “Extraordinary TransactionExchange Act”), or make in connection with any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender foregoing;
(f) act, alone or exchange offerin concert with others, to seek to control, advise, change or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of influence the Company with respect to any Extraordinary Transactionmanagement, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding processBoard, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Partygoverning instruments, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business policies or affairs of the Company);
(g) disclose any intention, plan or arrangement inconsistent with the foregoing;
(h) have any discussions or enter into any arrangement with, or advise, assist or encourage any other person in connection with any of the foregoing events;
(i) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any of the events described in clauses (a) through (h) above; or
(j) request the Company or any of its agents or Representatives, directly or indirectly, in any public manner, to amend or waive any of the foregoing provisions.
Appears in 1 contract
Samples: Standstill and Stock Restriction Agreement (Denali Therapeutics Inc.)
Standstill. (a) Each member of the PW Group/XX Xxxx JDL Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Standstill Period”), except as expressly set forth in this Agreement, neither he or it nor any of its Affiliates or Associates will, and he or it will cause each of his or its Affiliates or agents or other persons acting on his or its behalf not to, and will use commercially reasonable efforts to cause his or its respective Associates not to, directly or indirectly in any manner, alone or in concert with others:
(ia) 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, and will not nominate any candidate for election to the Board or oppose the directors nominated by the Board.
(b) 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 solely with other members of the JDL Group or one or more Affiliates of a member of the JDL Group with respect to the Common Stock currently owned as set forth in Section 2(c) of this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement;
(c) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of under the Exchange Act) or consents Act to vote, or seek to advise, encourage or influence any person with respect to the voting voting, any shares of Common Stock with respect to any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, 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) (), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board (including Xxxx X. Xxxx) at any shareholder meeting) or make or be the proponent 2006 Annual Meeting of any shareholder proposal (pursuant Shareholders and each subsequent annual meeting of shareholders with respect to Rule 14a-8 under which the Exchange Act or otherwise)Board has nominated Xxxx X. Xxxx, respectively;
(iid) formseek to call, joinor to request the call of, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) a special meeting of the Exchange Act for purposes shareholders of this Agreementthe Company, any such groupor seek to make, or make, a “Section 13(d) Group”) with shareholder proposal at any persons (other than a Section 13(d) Group that includes all or some meeting of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce or encourage any other person to initiate such proposal or request) or otherwise acting alone, or in any manner agree, attemptconcert with others, seek to control or propose to deposit any securities influence the governance or policies 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 AgreementCompany;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(ve) effect or seek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any material assets or businesses, of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of material assetsrestructuring, liquidation, dissolution or other extraordinary transaction involving with respect to the Company or any of its subsidiaries subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of their respective the media or securities (eachanalyst) of any intent, an “Extraordinary Transaction”)purpose, plan or proposal to obtain any waiver, or make consent under, or any amendment of, any of the provisions of Section 4(e) or this Section 5, or otherwise seek (in any manner that would require public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender disclosure by any PW of the members of the JDL Group Shareholders or XX Xxxx Group Shareholders their Affiliates or an Affiliate Associates) to obtain any waiver, consent under, or an Associate thereof any amendment of, any provision of this Agreement;
(g) directly or indirectly purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of, any Common Stock or other securities issued by the Company, or any securities convertible into or exchangeable for Common Stock or any other equity securities of the Company Company;
(h) enter into any tender arrangements, understandings or exchange offeragreements (whether written or oral) with, or vote by advise, finance, assist or encourage, any PW Group Shareholders other person that engages, or XX Xxxx Group Shareholders offers or an Affiliate or Associate thereof of proposes to engage, in any securities of the foregoing;
(i) request the Company with respect or its advisers, directly or indirectly, to amend or waive any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale provisions of such securities this Agreement;
(j) take or assets is initiated by the Company through an open bidding process, cause or (C) prohibit induce others to take any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities action inconsistent with any of the Company foregoing.
(k) It is understood and agreed that this Agreement shall not be deemed to prohibit Xxxx X. Xxxx from engaging in any lawful act in the event the Company enters into negotiations with exercise of his fiduciary duty as a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock director of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);.
Appears in 1 contract
Samples: Shareholder Agreement (Quipp Inc)
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that The AREX Parties agree that, from the date hereof until the termination of this Agreement in accordance with Section 5 until the Termination Date (the “Covered Standstill Period”), except as expressly set forth in this Agreementthe AREX Parties shall not, neither it nor any and shall cause each of its their respective Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, and it will cause each of its as amended (the “Exchange Act”)) (such Affiliates and Associates collectively, the “AREX Affiliates”, and each an “AREX Affiliate”) and each of the AREX Affiliates’ respective directors, officers, managers and employees not to, and will direct its and their respective consultants, agents, representatives, attorneys and advisors (to the extent acting on its or their behalf) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person or entity with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities Securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group or entities that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their are not AREX Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities Securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities Securities of the Company in any voting trust or similar arrangement, or subject any securities Securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) purchase or otherwise acquire, offer or offer, seek, propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group ownership (including any Section 13(dbeneficial ownership) Group), through swap or hedging transactions or otherwiseof the Securities of the Company, 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 the Company shares of Common Stock, or any rights decoupled from the underlying securities assets or liabilities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and AREX Parties owning, controlling or otherwise having any beneficial ownership or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.499.99% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided provided, however, that nothing herein will require any shares of Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, that the AREX Parties exceed the ownership limit applicable to such persons under this paragraph solely Section 2(a)(iii) as the result of a share repurchase or similar other Company action that reduces the number of outstanding shares of Common Stock;
(iv) other than through open market or block trade brokered sale transactions where the identity of the purchaser is unknown to the AREX Parties sell, offer or agree to sell, sell directly or indirectly, through swap or hedging transactions or otherwise, the securities Securities of the Company or any rights decoupled from the underlying securities Securities of the Company held by the PW Group/XX Xxxx Group Shareholders AREX Parties or any of their Affiliates AREX Affiliate to any person or entity not a (A) Party to this Agreement, (B) member of the Board, (C) officer of the Company or (D) AREX Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 104.99% in the aggregate of the shares of Common Stock outstanding at such time, except (X) 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 or (BY) any in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person or entity to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, division, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or assets (each, an “Extraordinary Transaction”), ) or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders the AREX Parties or an AREX Affiliate or an Associate thereof of any securities Securities of the Company into any tender or exchange offeroffer not initiated in breach of any standstill agreement to which the Company is a party;
(vi) except for settling any such transaction in existence as of April 15, 2020, engage in any transaction that would result in a “net short” position by effecting any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or vote by other similar right (including, without limitation, any PW Group Shareholders put or XX Xxxx Group Shareholders call option or an Affiliate or Associate thereof of any securities of the Company “swap” transaction) with respect to any Extraordinary Transactionsecurity (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 and the value from such a decline exceeds the aggregate value of the Securities of the Company beneficially owned by the AREX Parties;
(vii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation on, or nominate any PW Group Shareholders 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 XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent, (E) conduct a referendum of stockholders, (F) institute any litigation against the Company, its directors or Associate thereof from offering its officers, except for initiating any legal proceeding solely to purchase securities remedy a breach of or assets to enforce this Agreement or making counterclaims with respect to any legal proceeding initiated by or on behalf of the Company if against the sale of such securities or assets is initiated by the Company through an open bidding processAREX Parties, or (CG) prohibit make a request for any PW Group Shareholders stockholder list or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering other Company books and records, whether pursuant to purchase the securities Section 220 of the Delaware General Corporation Law or otherwise;
(viii) take any action in support of or make any proposal or request (in each case, other than non-public communications with the Company that are not intended to, and would not reasonably be expected to, require any public disclosure of such communications) that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board or unfilled newly-created directorships; (B) any material change in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Partycapitalization, stock repurchase programs and practices or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock dividend policy of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, any other material change in the event Company’s management, business or corporate structure, including, without limitation, its capital allocation, business operations or strategies or its management or other personnel; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or the Bylaws, or other actions that one may impede or more facilitate the acquisition of control of the Nominees Company by any person or their Replacements are officers, directors or employees ofentity; (E) causing a class of Securities of the Company to be delisted from, or Disclosing Nominees 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) Except for (A) the Schedule 13D Amendment (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);,
Appears in 1 contract
Samples: Cooperation Agreement
Standstill. (a) Each Executive agrees that, for a period of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that two years from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it Executive, Spouse nor any of its Affiliates Executive's or Associates will, and it Spouse's affiliates will (or will cause each of its Affiliates and Associates not or assist others to), directly or indirectly in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in without the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities prior written consent of the Company or any securities convertible or exchangeable into or exercisable for any such securities its Board of Directors: (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iiii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions purchase or otherwise, more than 1.0% of the voting securities or direct or indirect rights to acquire more than 1.0% of the voting securities of and issued by, the Company or direct or indirect any securities parent or subsidiary thereof, or of any Successor (as defined below), or any assets of the Company or any rights decoupled from the underlying securities parent or direct or indirect subsidiary or division thereof or of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they such Successor, which may be a Section 13(doutstanding on the date hereof or subsequently issued during such two year period; (ii) Group) having beneficial ownership, as determined make or any in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sellway participate in, directly or indirectly, through swap any "solicitation" of "proxies" (as such terms are used in the rules of the Securities Exchange Commission) to vote or hedging transactions seek to advise or otherwiseinfluence any person or entity with respect to the voting of, the any voting securities of the Company (or any rights decoupled from parent or direct or indirect subsidiary thereof); (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the underlying securities held by the PW Group/XX Xxxx Group Shareholders Company (or any of their Affiliates to any Third Party parent or direct or indirect subsidiary thereof) or its (as defined belowor their) that would knowingly result in such Third Partysecurities or assets; (iv) form, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, join or in any way participate in a "group" (as defined in Section l3(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) otherwise act, alone or in concert with others, to seek control or influence the management, Board of Directors or policies of the Company (or any parent or direct or indirect subsidiary thereof); (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or facilitate encourage any other person persons in connection with any of the foregoing, or (viii) contact, discuss with, make comments to effect or seek, offer or propose to effect or participate inotherwise provide information to, any tender or exchange offeranalysts, mergermajor stockholders, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution reporters or other members of the media respecting the Company (or its parents or direct or indirect subsidiaries), or its (or their) plans. Executive and Spouse also agree during such period not to request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) or take any action which might require the Company to make a public announcement regarding the possibility of an extraordinary transaction involving the Company or any of its subsidiaries securities or joint ventures or any of their respective assets. Notwithstanding the foregoing, Executive and Spouse shall be entitled to receive and own all securities (each, an “Extraordinary Transaction”)distributed in respect of, or make issued in exchange for, any public statement with respect voting securities owned by them which were not acquired in violation of this Agreement. As used herein, "Successor" shall mean any entity which in a transaction succeeds to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock Company's assets or which acquires substantially all of its stock so long as, in either case, holders of a majority of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more 's voting securities immediately prior to such transaction beneficially own a majority of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery voting securities of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);entity immediately thereafter.
Appears in 1 contract
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly Investor agrees that that, from the date hereof until the termination of this Agreement in accordance with Section 5 (until the “Covered expiration of the Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly indirectly, in any manner, acting alone or in concert with others:
(i) make, engage insubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any candidate for election to the Board (including by way participate of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(ii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or consents proposal of the Board, or recommend or request or induce or attempt to voteinduce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of any securities of the Company Common Stock or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become grant 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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 proxy with respect to the voting thereof, except of the Common Stock or other voting securities to any person other than to the Board or persons appointed as expressly set forth in this Agreementproxies by the Board;
(iii) acquire, offer or propose seek to acquirecall, or agree to acquirerequest the call of, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities special meeting of the Company Company’s stockholders, or any rights decoupled from the underlying securities make a request for a list of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates Company’s stockholders or for any books and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 records of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common StockCompany;
(iv) sellvote for any nominee or nominees for election to the Board, offer other than those nominated or agree supported by the Board;
(v) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to sellplace a representative or other Affiliate, directly Associate or indirectly, through swap nominee on the Board or hedging transactions or otherwise, seek the securities removal of any member of the Board or a change in the size or composition of the Board;
(vi) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing;
(vii) take any action challenging the validity or enforceability of any provisions of this Section 3(a);
(viii) publicly request that the Company amend or waive any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders provision of this Section 3(a); or
(ix) enter into any agreement, arrangement or understanding concerning any of their Affiliates the foregoing (other than this Agreement) or encourage or solicit any person to undertake any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such timeforegoing activities; provided, however, that the foregoing restriction nothing in this Section 3(a) or elsewhere in this Agreement shall not apply to prohibit (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock an Investor Director, acting in his or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that her fiduciary capacity as a result director of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided thatCompany, unless such Third Party is an Institutional Stockholder from (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control 1) taking any action or otherwise have beneficial ownership in more than 10% in the aggregate making any statement at any meeting of the shares Board or of Common Stock outstanding at such timeany committee thereof, or (B2) making any transaction approved by written consent of a majority of statement to the BoardChief Executive Officer, excluding the Nominees and their Replacements;
(v) effect Chief Financial Officer 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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock director of the Company; provided, that, in the case of (B) and 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) aboveany Investor from privately making any statement or expressing or disclosing such Investor’s views in private to the Chief Executive Officer, the PW Group Shareholders or, in the event that one Chief Financial Officer or more of the Nominees another other officer or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs 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 and the other matters referenced in Section 2(a);.
(b) As used in this Agreement:
Appears in 1 contract
Samples: Settlement Agreement (LRAD Corp)
Standstill. (a) Each Except as provided in Section 6.1(b), and subject to Section 6.1(c), during the Standstill Period, none of Rhône or its Affiliates (including, for the avoidance of doubt, the Initial Holders) shall, without the prior written consent of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from Board (excluding the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Rhône Directors), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone or in concert with othersindirectly:
(i) makeeffect or seek, engage in, offer or in propose (whether publicly or otherwise) to effect or announce any way intention to effect or cause or participate in, directly (A) any acquisition of Common Stock or indirectlyCommon Stock Equivalents if, as a result of any such acquisition, any of Rhône or its Affiliates (including, for the avoidance of doubt, the Initial Holders), individually or as part of a “group” (within the meaning of Section 13(d) of the Exchange Act), would become the beneficial owner (as defined in Rule 13(d) of the Exchange Act, except that the applicable Person(s) or group shall be deemed to have “beneficial ownership” of all shares that such Person(s) or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), of more than 34.99% of the total voting power of the Voting Stock, (B) any tender or exchange offer or merger involving the Company or (C) any “solicitation” of proxies “proxies” (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange ActSEC) or written consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities Voting Stock of the Company”) for the election of individuals , in each case in order to elect directors to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act) (other than a “solicitation” or acting as a “participant” in support any solicitation of all proxies to elect any Rhône Director who has not been nominated by the Board and/or elected by the stockholders of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwiseCompany);, or
(ii) form, join, encourage, influence, advise form or in any way participate in any “group” (as such term is defined in within the meaning of Section 13(d)(313(d) of the Exchange Act for purposes of this AgreementAct), any if such groupgroup would, as a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of result, become the persons identified on the Group 13Ds beneficial owner (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section Rule 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over except that such group shall be deemed to have “beneficial ownership” of all shares that such group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), of more than 17.4934.99% of the total voting power of the Voting Stock.
(b) Section 6.1(a) shall not prevent any direct or indirect acquisition (or participation in a “group” consisting solely of Rhône and any of its Affiliates with resulting beneficial ownership of more than 34.99% of the aggregate total voting power of the Voting Stock (determined in accordance with Section 6.1(a)(ii)) by Rhône or any of its Affiliates during the Standstill Period of (i) the Exchange Stock, (ii) the shares of Common Stock outstanding at such timeor Series A Preferred Stock issuable or issued upon the exercise of the Warrants or in connection with the exercise of any preemptive rights under Section 5.6 of the Warrant Agreement, and (Biii) with respect any Qualifying Employee 7 Stock issued to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase Rhône Directors or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) sellany Common Stock or Common Stock Equivalents acquired pursuant to a Permitted Transaction.
(c) If at any time during the term of this Agreement (i) the Company fails to nominate any Rhône Director or to vote any of its proxies in favor of any Rhône Director, offer (ii) the stockholders of the Company fail to elect any Rhône Director, (iii) a “change in control”, “change of control” or agree similar concept shall have occurred under any indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of which the Company or any rights decoupled from the underlying securities held of its subsidiaries is a party or by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving which the Company or any of its subsidiaries or joint ventures or any of their respective securities properties may be bound (eachother than as a result of Rhône breaching its obligations under Section 6.1(a)) or (iv) Rhône and its Affiliates (including, an “Extraordinary Transaction”for the avoidance of doubt, the Initial Holders), individually or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not as part of a “group” (Awithin the meaning of Section 13(d) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offerExchange Act), or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities are the beneficial owner (as defined in Rule 13(d) of the Company with respect Exchange Act, except that the applicable Person(s) or group shall be deemed to any Extraordinary Transactionhave “beneficial ownership” of all shares that such Person(s) or group has the right to acquire, (Bwhether such right is exercisable immediately or only after the passage of time) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of less than 20% of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the outstanding Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as on a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidderfully-diluted basis, then such Nominees or Replacements the restrictions set forth in Section 6.1(a) shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);permanently terminate.
Appears in 1 contract
Samples: Exchange Agreement (Quiksilver Inc)
Standstill. (a) Each member of the PW Group/XX Xxxx FrontFour Group Shareholders solely on behalf agrees that, during the Covered Period (unless specifically requested in writing by the Company, acting through a resolution of itself and its respective Affiliates and Associates hereby severally and a majority of the Company’s directors not jointly agrees that from including the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Director Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(collectively and individually, and it will cause each of its Affiliates and Associates the “FrontFour Affiliates”), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not FrontFour Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW FrontFour Group Shareholders (together with their Affiliates and Associates and the FrontFour Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.499.9% 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 such personsthe FrontFour Group and the FrontFour Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)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, amalgamation, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause (iv) shall not (A) preclude the tender by any PW the FrontFour Group Shareholders or XX Xxxx Group Shareholders or an a FrontFour Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW the FrontFour Group Shareholders or XX Xxxx Group Shareholders or an a FrontFour Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including, 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;
(vi) (A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation, on or nominate any PW Group Shareholders candidate to, the Board, except as expressly set forth in Section 2 hereof, (C) seek (including pursuing or XX Xxxx Group Shareholders encouraging any “withhold” or Affiliate similar campaign) the removal of any member of the Board, (D) solicit consents from stockholders or Associate thereof from offering otherwise act or seek to purchase securities act by written consent, (E) conduct a referendum of stockholders, or assets (F) make a request for any stockholder list or other Company books and records, whether pursuant to NRS 78.105, NRS 78.257 or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization, dividend policy or stock repurchase program or practices of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Amended and Restated Articles of Incorporation or Amended and Restated Bylaws; (E) any action that may impede or facilitate the acquisition of control of the Company if the sale by any person; (F) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (G) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs or any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) enter into any discussions 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;
(x) commence, encourage or support any derivative action in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock name of the Company, or any class action against the Company or any of its officers or directors; provided, thathowever, in that for avoidance of doubt, the case foregoing shall not prevent any member of the FrontFour Group from (A) bringing litigation to enforce the provisions of this Agreement or (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against such member of the FrontFour Group; and provided, further, that the foregoing shall also not prevent the members of the FrontFour Group 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 permitted by this clause (x);
(xi) take any action that could reasonably be expected to force the Company to make a public disclosure with respect to any of the foregoing; or
(xii) request, directly or indirectly, any amendment or waiver of the foregoing. The foregoing provisions of this Section 3(a) shall not be deemed to prohibit the FrontFour Group or its directors, officers, employees, agents or representatives (acting in such capacity) from communicating privately with the Company’s directors, executive officers or advisors regarding matters that would otherwise be prohibited by this Section 3(a) so long as such communications are not intended to, and could not reasonably be expected to, require any public disclosure of such communications.
(b) Each member of the FrontFour Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any FrontFour Affiliate, to be present for quorum purposes and to be voted, at the Company’s annual and special stockholder meetings during the Covered Period (and any actions by written consent of the stockholders in lieu of a meeting) and at any adjournments or postponements thereof, and further agrees that, at each such stockholder meeting or action by written consent of the stockholders during the Covered Period, they shall vote in favor of (i) any and all directors nominated by the Board for election at such meetings and (Cii) abovein accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meetings or pursuant to such written consent; provided, the PW Group Shareholders orhowever, in connection with any such meeting or action by written consent, in the event that one both Institutional Shareholder Services Inc. (“ISS”) and Glass, Lewis & Co., LLC (“Glass Lewis”) recommend otherwise with respect to any proposals (other than the election or more removal of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) todirectors), the XX Xxxx FrontFour Group Shareholders, or the XX Xxxx Group ShareholdersFrontFour Affiliates, as applicable, shall have given be permitted to vote in accordance with the ISS and Glass Lewis recommendation; and provided, further, that with respect to a proposal related to an Extraordinary Transaction, the FrontFour Group and the FrontFour Affiliates may vote their shares of Common Stock beneficially owned, directly or indirectly, in the discretion of the FrontFour Group or the FrontFour Affiliate, as applicable.
(c) Nothing in this Section 3 shall limit any actions that may be taken by the Director Designee acting solely as a director of the Company consistent with his or her fiduciary duties as a director of the Company (it being understood and agreed that the FrontFour Group and the FrontFour Affiliates shall not seek to do indirectly through the Director Designee anything that would be prohibited if done by the FrontFour Group or the FrontFour Affiliates).
(d) The FrontFour Group shall give written notice to the Company of its election to act as a potential bidder for the Company within 10 days one (1) business day of the Board’s decision FrontFour Group ceasing to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders orbeneficially own, in the event that one or more aggregate, at least 2% of the Nominees outstanding shares of Common Stock (without giving effect to any share issuances or their Replacements are employees of, or Disclosing Nominees to, similar Company actions that increase the XX Xxxx Group Shareholders, number of outstanding shares of Common Stock after the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Companydate hereof);.
Appears in 1 contract
Standstill. (a) Each The Purchaser agrees that, during the Standstill Period, it shall not, and shall cause each of the PW Group/XX Xxxx Group Shareholders solely on behalf Purchaser Affiliates (other than any Purchaser Affiliate who, from time to time, is an officer or an employee of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor Company or any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates Subsidiaries insofar as such Purchaser Affiliate is acting in such capacity) not to, directly or indirectly indirectly, in any manner, including acting on behalf of the Purchaser, alone or in concert with others:, take any of the following actions without the prior consent of the Company (acting through a resolution of the Company’s directors not including any Purchaser Affiliated Directors):
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, of Directors (other than in respect of a Purchaser Affiliated Director) 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) (for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any shareholder meeting) , or make or be the proponent of any shareholder proposal (pursuant to the CBCA, Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons who are not Purchaser Affiliates (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associatesany portfolio company, but not including any other entities or persons not identified on dedicated holding company within the Group 13Ds as of the date hereofportfolio company structure) with respect to any securities of the Company 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 set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, take-over bid, 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) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such timesecurities; provided that nothing herein will require any Common Stock Shares, Preferred Shares, Class A Shares or Alternative Preference Shares to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of increases to the Base Liquidation Preference pursuant to the Series 6 Articles of Amendment, a share repurchase or similar any other Company action actions that reduces the number of outstanding shares of Company Common StockShares;
(iv) sell, offer or agree to selltransfer, directly or indirectly, through swap or hedging transactions or otherwise, the securities of Common Shares, the Company Preferred Shares, Class A Shares or Alternative Preference Shares Beneficially Owned by the Purchaser or any economic or voting rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates Purchaser to any Third Party (as defined below) that that, to the knowledge of the Purchaser at the time it enters into such transaction, would knowingly result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in Beneficial Ownership of Company Common Shares representing more than 512.5% in of the aggregate voting power of the shares of Company Common Stock outstanding at such timeShares; provided, howeverthat (x) the Purchaser shall provide written notice to the Company if it has actual knowledge (after good faith inquiry) at the time of such transaction that such transfer, that the foregoing restriction shall not apply directly or indirectly, through swap or hedging transactions or otherwise, of its Common Shares, Preferred Shares, Class A Shares or Alternative Preference Shares to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders would result in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% having Beneficial Ownership in the aggregate of more than 9.9% of the shares of Common Stock Class A Shares or Alternative Preference Shares outstanding at such timetime and (y) nothing in this clause (iv) shall in any way prohibit, limit or restrict any transfer (A) pursuant to a Third Party Tender/Exchange Offer or pursuant to an amalgamation, merger, consolidation, arrangement or similar transaction entered into by the Company, or (B) any in a bona fide underwritten public offering or in a broker transaction approved by written consent pursuant to Rule 144 (provided that, in relation to such Rule 144 offering, the Purchaser has not instructed or encouraged such broker to sell such Common Shares, Preferred Shares, Class A Shares or Alternative Preference Shares to a specific Third Party or class of Third Parties which would result in a majority violation of the Board, excluding the Nominees and their Replacementsthis clause (iv));
(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)effect, offer or propose to effect, cause or participate incause, or in any way knowingly assist or facilitate any other person to effect or seek, offer or propose to effect or participate ineffect, any take-over bid, tender or exchange offer, amalgamation, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement in violation of the foregoing with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders the Purchaser or XX Xxxx Group Shareholders or an a Purchaser Affiliate or an Associate thereof of any securities of the Company into any tender Third Party Tender/Exchange Offer (and any related conversion of Preferred Shares to the extent required to effect such tender) or exchange offer, or the vote by any PW Group Shareholders the Purchaser or XX Xxxx Group Shareholders or an a Purchaser Affiliate or Associate thereof of any voting securities of the Company with respect to any Extraordinary Transaction;
(vi) (A) call or seek to call any meeting of shareholders of the Company, including by written consent, (B) prohibit seek representation on the Board of Directors, except as expressly set forth herein, (C) seek the removal of any PW Group Shareholders member of the Board of Directors (other than a Purchaser Affiliated Director in accordance with Section 4.06), (D) solicit written consents from shareholders or XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent with respect to the Company, (other than in respect of the election of a Purchaser Affiliated Director), or Associate thereof from offering (E) conduct a referendum of shareholders of the Company;
(vii) make or be a public proponent of any shareholder proposal that seeks (A) controlling or changing the Board of Directors or management of the Company, including any plans or proposals to purchase securities change the number or assets term of directors or to fill any vacancies on the Board of Directors (other than in respect of a Purchaser Affiliated Director), (B) any material change in the capitalization or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s articles of amalgamation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company if the sale by any person, (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event 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 enters to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that would violate the provisions of this Section 4.03;
(ix) enter into negotiations any discussions, 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 (other than activities between Purchaser and its Affiliates that would not violate the other provisions of this Section 4.03); or
(x) request, directly or indirectly, any amendment, modification or waiver of this Section 4.03 (including this clause (x)).
(b) Notwithstanding the foregoing or anything in this Agreement to the contrary, the Purchaser and the Purchaser Affiliates shall not be restricted from (i) acquiring securities with the prior written consent of the Company, (ii) acquiring securities upon conversion of the Preferred Shares in accordance with the Series 6 Articles of Amendment or pursuant to Section 4.11, (iii) participating in rights or securities offerings conducted by the Company, (iv) receiving stock dividends or similar distributions made by the Company, (v) tendering Common Shares, Preferred Shares, Class A Shares or Alternative Preference Shares as permitted by Section 4.02 or after the Restricted Period, or (vi) disposing of Common Shares, Preferred Shares, Class A Shares or Alternative Preference Shares by operation of a statutory amalgamation, statutory arrangement or other statutory procedure involving the Company.
(c) The foregoing provisions of Section 4.03(a) shall not be deemed to prohibit the Purchaser or any Purchaser Affiliates or their respective directors, executive officers, partners, employees or managing members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; provided that no such person may request, directly or indirectly, any amendment, modification or waiver of this Section 4.03 (including Section 4.03(c)). In no event shall this Section 4.03 be construed as prohibiting the Purchaser or any Purchaser Affiliates from taking any of the aforementioned actions with respect to a Third Party regarding a proposal to be acquired by such Third Party, that is an owner (“other entity”) of an interest in the Company or a Third Party commences a hostile tender offer to acquire all or substantially all any of the Common Stock Company Subsidiaries, provided that (x) the Purchaser and the Purchaser Affiliates do not share Confidential Information received from the Company in violation of this Agreement or the Confidentiality Agreement, and (y) such other entity does not form a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with either the Purchaser or any Purchaser Affiliate with respect to any securities of the Company; provided, that, .
(d) Nothing in the case of (B) and (C) above, the PW Group Shareholders or, in the event this Section 4.03 shall limit any action that one may be taken by any Purchaser Affiliated Director acting solely as a director or more officer of the Nominees Company consistent with his or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act her fiduciary duties as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process director or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs officer of the Company);.
Appears in 1 contract
Standstill. (a) Each of Purchaser agrees that, during the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from Standstill Period (unless specifically requested in writing by the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”Company), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willsuch Purchaser shall not, and it will shall cause each of its Affiliates and Associates (collectively and individually, the “Purchaser Affiliates”) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board of Directors or to approve shareholder proposalsstockholder proposals that have not been authorized and approved, or recommended for approval, by the Board of Directors, 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) (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 shareholder stockholder meeting) , or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not such Purchaser’s Purchaser Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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 set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders such Purchaser (together with their Affiliates and Associates and any other persons with whom they may be its Purchaser Affiliates), having Beneficial Ownership of a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 number of shares of Company Common Stock that exceeds the number of shares of Company Common Stock that would have been issuable upon conversion of the Exchange Act, over more than 17.49% in the aggregate Notes at such time (assuming for such purposes that all of the Notes issued at the Closing remained outstanding), excluding any issuance by the Company of shares of Company Common Stock outstanding at such timeor options, and (B) with respect warrants or other rights to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of acquire Company Common Stock outstanding at such time(or the exercise thereof) to any SL Affiliated Director as compensation for their membership on the Board of Directors; provided provided, that nothing herein will require any Notes, shares of Company Common Stock or other securities to be sold to the extent such personsPurchaser and such Purchaser’s Purchaser Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar any other Company action actions that reduces the number of outstanding shares of Company Common Stock;
(iv. For the avoidance of doubt, this Section 4.03(a)(iii) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities shall not restrict conversion of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) that would knowingly result in such Third Party, together with its Affiliates Notes and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender be violated by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof conversion rate adjustment. For purposes of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);this
Appears in 1 contract
Standstill. (a) Each member of the PW Group/XX Xxxx ValueAct Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from that, during the date hereof until the termination of this Agreement in accordance with Section 5 (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 ValueAct Designee), except as expressly set forth in this Agreementit shall not, neither it nor any and shall cause each of its Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “ValueAct Affiliates,” provided that no portfolio company of the ValueAct Group shall be deemed a “ValueAct Affiliate” so long as such portfolio company (A) has not discussed the Company or its business with the ValueAct Group or the ValueAct Designee, (B) has not received from the ValueAct Group or the ValueAct Designee information concerning the Company or its business, and it will cause each (C) is not acting at the request of, in coordination with or on behalf of its Affiliates and Associates the ValueAct Group or the ValueAct Designee), not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not ValueAct Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW ValueAct Group Shareholders (together with their Affiliates and Associates and the ValueAct Affiliates) owning, controlling or otherwise having any beneficial or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.4912% in the aggregate of the shares of Common Stock outstanding at such time; provided that provided, that, nothing herein will require Common Stock to be sold to the extent such personsthe ValueAct Group and the ValueAct Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action actions that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities of the Company held by the PW Group/XX Xxxx ValueAct Group Shareholders or any of their Affiliates ValueAct Affiliate to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company or (D) ValueAct Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party (as defined below) Party”), that would knowingly result in such Third Party, together with its Affiliates affiliates and Associatesassociates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 109.9% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any except in a transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW the ValueAct Group Shareholders or XX Xxxx Group Shareholders or an a ValueAct Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, offer or vote by any PW the ValueAct Group Shareholders or XX Xxxx Group Shareholders or an a ValueAct Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction;
(vi) 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 securities of the Company;
(vii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation, on or nominate any PW Group Shareholders 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 XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent, (E) conduct a referendum of stockholders, or Associate thereof from offering (F) make a request for any stockholder list or other Company books and records, whether pursuant to purchase securities Section 220 of the DGCL or assets otherwise;
(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company if the sale by any person; (E) causing a class of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event 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 enters to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) disparage or cause to be disparaged the Company or Affiliates thereof, any of its current or former officers, or directors;
(x) 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;
(xi) enter into negotiations any discussions negotiations, agreements, or understandings with a any Third Party regarding a proposal 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
(xii) 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 ValueAct Group or its directors, officers, partners, employees, members or agents (acting 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 such communications.
(b) Each member of the ValueAct Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or by any ValueAct Affiliate, to be acquired by such Third Partypresent for quorum purposes and to be voted, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of at the Company’s annual and special stockholder meetings and at any adjournments or postponements thereof, and further agrees that at the 2013 annual stockholder meeting they shall vote in favor of (i) all directors nominated by the Board for election at such meeting (including the ValueAct Designee as applicable) and (ii) in accordance with the Board’s recommendation with respect to any proposals that may be the subject of stockholder action at such meeting; provided, thathowever, that with respect to a proposal related to an Extraordinary Transaction, the ValueAct Group and the ValueAct Affiliates may vote their shares of Common Stock beneficially owned, directly or directly, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more discretion of the Nominees ValueAct Group or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group ShareholdersValueAct Affiliate, as applicable, .
(c) Nothing in this Section 2 shall have given written notice to limit any actions that may be taken by the ValueAct Designee acting solely as a director of the Company of its election to act consistent with his fiduciary duties as a potential bidder for director of the Company within 10 days of (it being understood and agreed that the Board’s decision ValueAct Group and the ValueAct Affiliates shall not seek to initiate do indirectly through the sale process or negotiate ValueAct Designee anything that would be prohibited if done by the Third Party acquisition proposal ValueAct Group or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the CompanyValueAct Affiliates);.
Appears in 1 contract
Samples: Nomination and Standstill Agreement (Adobe Systems Inc)
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly Investor agrees that that, from the date hereof until the termination of this Agreement in accordance with Section 5 (until the “Covered expiration of the Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly indirectly, in any manner, acting alone or in concert with others:
(i) make, engage insubmit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or in nominate any candidate for election to the Board (including by way participate of Rule 14a-11 of Regulation 14A), other than as expressly permitted by this Agreement;
(ii) engage in, directly or indirectly, any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a “participant in a solicitation” (as such terms are used term is defined in the proxy rules Instruction 3 of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) Schedule 14A of Regulation 14A under the Exchange Act) in opposition to the recommendation or consents proposal of the Board, or recommend or request or induce or attempt to voteinduce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of any securities of the Company Common Stock or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become grant 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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 proxy with respect to the voting thereof, except of the Common Stock or other voting securities to any person other than to the Board or persons appointed as expressly set forth in this Agreementproxies by the Board;
(iii) acquire, offer or propose seek to acquirecall, or agree to acquirerequest the call of, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities special meeting of the Company Company’s stockholders, or any rights decoupled from the underlying securities make a request for a list of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates Company’s stockholders or for any books and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 records of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common StockCompany;
(iv) sellvote for any nominee or nominees for election to the Board, offer other than those nominated or agree supported by the Board;
(v) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to sellplace a representative or other Affiliate, directly Associate or indirectly, through swap nominee on the Board or hedging transactions or otherwise, seek the securities removal of any member of the Board or a change in the size or composition of the Board;
(vi) disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing;
(vii) take any action challenging the validity or enforceability of any provisions of this Section 3(a);
(viii) publicly request that the Company amend or waive any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders provision of this Section 3(a); or
(ix) enter into any agreement, arrangement or understanding concerning any of their Affiliates the foregoing (other than this Agreement) or encourage or solicit any person to undertake any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such timeforegoing activities; provided, however, that the foregoing restriction nothing in this Section 3(a) or elsewhere in this Agreement shall not apply to prohibit (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock Investor from privately making any statement or any Third Party who represents expressing or disclosing such Investor’s views in private to the PW Group/XX Xxxx Group Shareholders in writing that as a result Chief Executive Officer, the Chief Financial Officer or another other officer or director of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, Company; or (B) any transaction approved by written consent Investor, Affiliate or Associate from voting in such manner as it deems appropriate on any matter unrelated to the election of a majority directors of the Board, excluding Company and the Nominees and their Replacements;other matters referenced in Section 2(a).
(vb) effect or seek to effect As used in this Agreement:
(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 ini) the term “Affiliate” means a person that directly, or in any way assist indirectly through one or facilitate any other person to effect or seekmore intermediaries, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”)controls, or make any public statement is controlled by, or is under common control with, the person specified with respect to an Extraordinary Transactionthe specific action at issue hereunder; providedthe term “Associate” means any corporation or organization controlled by the person specified, howeverany 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, that this clause shall not (A) preclude the tender by and any PW Group Shareholders relative or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof spouse of any securities of the Company into any tender or exchange offersuch person, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof relative of any securities of such spouse, who has the Company same home as such person, in each case, with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if specific action at issue hereunder; the sale of such securities or assets is initiated term “control” shall have the meaning set forth in Rule 12b-2 promulgated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase SEC under the securities of Exchange Act; the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) terms “beneficial owner” and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, “beneficial ownership” shall have given written notice to the Company 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 (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process any kind or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);nature; and
Appears in 1 contract
Samples: Investors Agreement (Iroquois Capital Management, LLC)
Standstill. (a) Each of During the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willeach Xxxxxx Party shall not, and it will shall cause each of his or its Affiliates and Associates Representatives not to, directly or indirectly in any mannerindirectly:
(i) seek, alone or in concert with others:, (A) to call a meeting of stockholders, (B) representation on the Board, except as specifically contemplated in the Recitals above and in Section 3 of this Agreement, provided that Xxxxxx may, in his capacity as a member of the Board, discuss matters of Board representation on a confidential basis with members of the Board during meetings of the Board or the Special Committee, or (C) the removal of any member of the Board;
(iii) make, engage insolicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to the shares of the Common Stock, or from the holders of the shares of Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of the Schedule 14A promulgated under the Exchange Act) in or assist, encourage, advise or support any way participate in, directly or indirectly, Third Party in any “solicitation” of proxies any proxy, consent or other authority (as such terms are used defined under the Exchange Act) to vote any shares of Common Stock (other than any encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
(iii) (A) form or join in a “group” (within the proxy rules meaning of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(ivSection 13(d)(3) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person with respect to any shares of Common Stock (for the voting avoidance of doubt, excluding any securities group composed solely of the Company Xxxxxx Parties and their Affiliates), (B) grant any proxy, consent or other authority to vote with respect to any matters to be voted on by the Company’s stockholders (other than to the Xxxxxx Parties and their Affiliates and the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or (C) agree to deposit or deposit any shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such securities shares of Common Stock in any voting trust or similar arrangement (collectivelyother than (x) to the Xxxxxx Parties and their Affiliates or the named proxies included in the Company’s proxy card for any stockholder meeting and (y) customary brokerage accounts, “securities margin accounts, prime brokerage accounts and the like, in each case, of the Company”Xxxxxx Parties and their Affiliates);
(iv) for the election of individuals to the Board or to approve shareholder proposals, or become execute any written consent as a “participant” in any contested “solicitation” for the election of directors stockholder with respect to the Company or its Common Stock, except as is approved by the Board or otherwise permitted by this Agreement;
(as such terms are defined or used under v) without the Exchange Act) (other than a “solicitation” or acting as a “participant” in support of all approval of the nominees Board, separately or in conjunction with any Third Party in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, publicly (including in communications to the media) propose, encourage or support or effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other similar business transaction involving the Company or a material amount of the Board assets or businesses of the Company or actively encourage, initiate or support any other Third Party in any such activity; provided that the Xxxxxx Parties shall be permitted to sell or tender their shares of Common Stock or other Voting Securities, and otherwise receive consideration, pursuant to any such transaction;
(vi) without the approval of the Board, present at any shareholder meetingannual meeting or any special meeting of the Company’s stockholders any proposal for consideration for action by the stockholders;
(vii) make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or make or be the proponent of any shareholder proposal (request pursuant to Rule 14a-8 14a-7 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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 is reasonably necessary to enable the Xxxxxx Parties to effect a tender offer or exchange offer permitted under Section 1(a)(v), provided, that this Section 1(a)(vii) shall not be applicable if Xxxxxx resigns from the Board while there is a material breach by the Company of this Agreement;
(iiiviii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group comment publicly (including any Section 13(din communications to the media) Group)concerning the Company’s management, through swap policies, strategy, operations, financial results or hedging transactions or otherwise, any securities of the Company affairs or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures subsidiaries;
(ix) publicly disclose, except as may be required by applicable law, any request that the Company or any directors, officers, partners, members, employees, agents or Affiliates of the Company, directly or indirectly, amend or waive any provision of this Agreement (including this Section 1(a)(ix)); or
(x) take any action which could have the effect of encouraging, assisting or influencing other stockholders of the Company or any other persons to engage in actions which, if taken by such Party, would violate this Agreement.
(b) Notwithstanding anything to the contrary contained in this Xxxxxxx 0, xxxx of the Xxxxxx Parties nor their respective securities (each, an “Extraordinary Transaction”), Affiliates shall be prohibited or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not restricted from:
(A) preclude the tender by taking any PW Group Shareholders action, or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of engaging in any securities communication in furtherance of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof rights and responsibilities of any securities Xxxxxx as a member of the Company with respect to any Extraordinary Transaction, Board;
(B) prohibit communicating privately with the Board or any PW Group Shareholders officer or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets director of the Company if the sale 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 securities communications by any of the Xxxxxx Parties or assets is initiated by their respective Affiliates, the Company through an open bidding process, or (C) prohibit its Affiliates or any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer subject in any case to acquire all or substantially all confidentiality policies of the Common Stock of the Company; providedBoard, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice any confidentiality obligations to the Company of its election any such director or officer and applicable law, rules or regulations;
(C) taking any action necessary to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process comply with any law, rule or negotiate the Third Party acquisition proposal regulation or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event any action required by any governmental or regulatory authority or stock exchange that one or more of the Nominees or their Replacements are employees ofhas, or Disclosing Nominees tomay have, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right jurisdiction over any Xxxxxx Party; or
(D) responding to participate as or complying with a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);validly issued legal process.
Appears in 1 contract
Standstill. (a) Each of The Purchaser agrees that, during the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Standstill Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willshall not, and it will shall cause each of its Affiliates (collectively and Associates individually, the “Purchaser Affiliates,”) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:, take any of the following actions without the prior consent of the Company (acting through a resolution of the Company’s directors not including, in respect of any consent to actions taken or proposed to be taken by the Purchaser or its Affiliates, any Xxxx Affiliated Director):
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board of Directors or to approve shareholder proposalsany proposals submitted to a vote of the stockholders of the Company that have not been authorized and approved, or recommended for approval, by the Board of Directors, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder stockholder meeting) , or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their who are not Purchaser Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities of the Company 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 set forth in permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) Groupof the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders Purchaser (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Groupthe Purchaser Affiliates) having beneficial ownership, as determined in accordance with Rule 13d-3 Beneficial Ownership of the Exchange Act, over more than 17.4919.9% in the aggregate of the shares of the Company Common Stock outstanding at such timetime (assuming all the Notes are converted on a fully physical settlement basis), and (B) with respect to excluding any issuance by the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 Company of the Exchange Act, over more than 17.49% in the aggregate of the shares of Company Common Stock outstanding at such timeor options, warrants or other rights to acquire Company Common Stock (or the exercise thereof) to any Xxxx Affiliated Director as compensation for their membership on the Board of Directors; provided that nothing herein will require any Notes or shares of Company Common Stock to be sold to the extent such personsthe Purchaser and the Purchaser Affiliates, collectively with their Affiliates and Associatescollectively, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar any other Company action actions that reduces the number of outstanding shares of Company Common Stock;
(iv. For the avoidance of doubt, this Section 4.03(a) sell, offer or agree shall not restrict conversion of the Notes and provided further that nothing herein will prevent Purchaser from making proposals to sell, directly or indirectly, through swap or hedging transactions or otherwise, the acquire securities of the Company if Purchaser does not make any public announcement or any rights decoupled from the underlying securities held disclosure of such proposal and such proposal would not reasonably be expected to require public announcement or disclosure by the PW Group/XX Xxxx Group Shareholders Company. For purposes of this Section 4.03(a), no securities Beneficially Owned by a portfolio company of the Purchaser or its Affiliates will be deemed to be Beneficially Owned by the Purchaser or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate only so long as (x) such portfolio company is not an Affiliate of the shares Purchaser for purposes of Common Stock outstanding at this Agreement, (y) neither the Purchaser nor any of the Purchaser Affiliates has encouraged, instructed, directed, supported, assisted or advised, or coordinated with, such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC portfolio company with respect to its ownership the acquisition, voting or disposition of Common Stock securities of the Company by the portfolio company and (z) neither the Purchaser or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders of its Affiliates is a member of a group (as such term is defined in writing that as a result Section 13(d)(3) of the transaction it will file a Schedule 13G Exchange Act) with that portfolio company with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate any securities of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;Company.
(viv) 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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of material all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders such Purchaser or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof its Purchaser Affiliates of any securities of the Company into any tender Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or exchange offer, or the vote by any PW Group Shareholders such Purchaser or XX Xxxx Group Shareholders or an Affiliate or Associate thereof its Purchaser Affiliates of any voting securities of the Company with respect to any Extraordinary TransactionTransaction in accordance with the recommendation of the Board of Directors;
(v) (A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) prohibit seek representation on the Board of Directors, except as expressly set forth herein, (C) seek the removal of any PW Group Shareholders member of the Board of Directors (other than a Bain Affiliated Director in accordance with Section 4.07), (D) solicit consents from stockholders or XX Xxxx Group Shareholders otherwise act or Affiliate seek to act by written consent with respect to the Company, (E) conduct a referendum of stockholders of the Company or Associate thereof from offering (F) make a request for any stockholder list or other Company books and records, whether pursuant to purchase Section 220 of the DGCL or otherwise;
(vi) take any action in support of or make any proposal or request that constitutes: (A) controlling or changing the Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s 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 equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act (except in each case pursuant to any action or transaction permitted by clause (y) of Section 4.03(a)(iv) and Section 4.03(a)(v));
(vii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement; or
(viii) enter into any discussions, 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.
(b) Nothing in this Section 4.03 shall limit any action that may be taken by any Bain Affiliated Director acting solely as a director of the Company consistent with his fiduciary duties as a director of the Company if such action does not include any public announcement or disclosure by such Bain Affiliated Director or by Purchaser and its Purchaser Affiliates.
(c) The provisions of Section 4.03(a) shall not be deemed to prohibit the sale Purchaser or any Purchaser Affiliates or their respective directors, executive officers, partners, employees, managing members, advisors or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such securities or assets is initiated by communications.
(d) Notwithstanding anything in Section 4.03(a) to the Company through an open bidding processcontrary, or if (Ci) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations a definitive agreement providing for a transaction that, if consummated, would result in a Change in Control and (ii) the Company had not, reasonably prior to entering into such definitive agreement, provided the Purchaser with a Third Party regarding written notice inviting the Purchaser and Purchaser Affiliates to make one or more proposals or offers to effect a proposal transaction that would result in a Change in Control, then after the announcement of such transaction and prior to be acquired by the earlier of any termination of such Third Partydefinitive agreement or Company stockholder approval of such definitive agreement, nothing in Section 4.03(a) will prevent the Purchaser or a Third Party commences a hostile tender offer any Purchaser Affiliate (A) from submitting to acquire all the Board of Directors one or substantially all more bona fide proposals or offers for an alternative transaction involving, directly or indirectly, the Purchaser or one or more of the Common Stock of the Company; providedPurchaser Affiliates, that, in the case of (B) pursuing and entering into any such alternative transaction with the Company and (C) above, the PW Group Shareholders or, taking any actions in the event that one or more furtherance of the Nominees or their Replacements are officersforegoing, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice including actions relating to the Company of its election to act as a potential bidder obtaining equity and/or debt financing for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition alternative transaction as long as (x) any proposal or offer is conditioned on the proposed transaction being approved by the Board of Directors and (y) the Purchaser and the Purchaser Affiliates do not make any public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery or disclosure of such notice proposal, offer or actions other than any filings and until such time as disclosures that may be required in filings with the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);SEC.
Appears in 1 contract
Samples: Investment Agreement (Nutanix, Inc.)
Standstill. Each of Arcelor and Noble agrees that, until the date which is two years from the date hereof, it will not, whether singly or as part of a “group” (as defined under the US Securities Exchange Act of 1934, as amended (the “Exchange Act”)), directly or indirectly: (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from the date hereof until the termination of this Agreement in accordance with Section 5 acquire, offer, make a proposal or agree to acquire (the “Covered Period”whether publicly or otherwise), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly in any manner, alone any material assets of the other party or in concert with others:
of its subsidiaries or any equity securities of the other party or of its subsidiaries, or “beneficial ownership” thereof (ias defined under the Exchange Act), except pursuant to a stock split, stock dividend or similar event not effected pursuant to a violation of this paragraph; (b) make, engage in, make or in any way propose or participate in, directly or indirectly, in any “solicitation” of proxies “proxies” to vote (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth defined in Rule 14a-1(l)(2)(iv) of 14a-1 under the Exchange Act) ), solicit any consent or consents to vote, communicate with or seek to advise, encourage advise or influence any person person, other than the other Arcelor S.A. October 26, 2006 party, with respect to the solicitation or voting of any securities equity security of the Company or other party in opposition to any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities matter that has been recommended by the board of directors of the Company”) for the election other party or in favor of individuals to the Board or to approve shareholder proposals, any matter that has not been approved by such board or become a “participant” in any contested “solicitationelection contest” for the election of directors with respect to the Company (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the other party; (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(iic) form, joinbe a member of, encourage, influence, advise join or in encourage the formation of any way participate in any “group” group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereofso defined) with respect to any securities equity security of the Company other party or otherwise in the acquisition of any manner agree, attempt, seek or propose to assets of the other party; (d) deposit any securities equity security of the Company in any other party into a voting trust or similar arrangement, or subject any securities of the Company such security to any arrangement or agreement with respect to the voting thereof, except as expressly set forth thereof that would cause it to be in violation of any other provision of this Agreement;
paragraph; (iiie) acquire, offer seek election to or propose seek to acquireplace a representative on the board of directors of the other party otherwise than in connection with, or agree as contemplated in, the Transaction; (f) call or seek to acquirehave called any meeting of the stockholders of the other party other than by participating as a director of the other party in calling, directly or indirectlyseeking to have called, meetings of stockholders generally; (g) solicit, seek to effect, negotiate with or provide any information to any other person with respect to, or make any statement or proposal, whether by purchasewritten or oral, tender or exchange offer, through the otherwise make any public announcement or proposal whatsoever with respect to a merger or acquisition of control the other party, the sale of another person, by joining all or a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities substantial portion of the Company or any rights decoupled from the underlying securities assets of the Company that would result in (A) other party and its subsidiaries, the liquidation of the other party, the recapitalization of the other party or a similar business transaction with respect to the PW Group Shareholders (together with their Affiliates and Associates and other party or take any action that might require the other persons with whom they may be party to make a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) public announcement with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownershipsuch matter, as determined in accordance with Rule 13d-3 of the Exchange Act, over more each case otherwise than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file connection with the SEC with respect to its ownership of Common Stock Transaction; or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that(h) instigate, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control encourage or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such timeassist, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(v) effect or seek to effect (including, without limitation, by entering enter into any discussionsdiscussions or arrangements with, 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 do any of the actions described in this paragraph. (References in this paragraph to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution terms defined under the Exchange Act are intended to include such terms or other extraordinary transaction involving the Company terms of like or any similar import under applicable securities laws, rules or regulations of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”other relevant jurisdictions.), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, or (C) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, that, in the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);
Appears in 1 contract
Samples: Binding Letter of Intent
Standstill. (a) Each of During the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that from Standstill Period, the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither it nor any of its Affiliates or Associates willOriginal Directors shall not, and it will shall cause each of its their Affiliates and Associates not to, directly or indirectly in any mannerindirectly, alone absent prior express written invitation or in concert with othersauthorization by the Board granted after the date of this Agreement:
(ia) makesolicit proxies, engage indesignations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to shares of the Company’s common stock, or encourage or participate in any campaign to withhold proxies or votes for director nominees recommended by the Board, or make or in any way participate in, directly or indirectly, in any “solicitation” of proxies (as such terms are used in any “proxy” within the proxy rules meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote or withhold the vote of any shares of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person Company’s common stock with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposalsmatter, or become a “participant” in any contested “solicitation” solicitation for the election of directors with respect to the Company (as such terms are defined or used under in the Exchange Act) (Act and the rules promulgated thereunder), other than a “solicitation” solicitations or acting as a “participant” in support of all the recommendations of the nominees Board;
(b) (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 the Board, (ii) seek, alone or in concert with others, the removal of any member of the Board at Board, except as expressly set forth herein, or (iii) seek to call, request the call, join with any shareholder meetingother stockholder in a request to call or call, a special meeting of the Company’s stockholders;
(c) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to shares of the Company’s common stock, or deposit any shares of the Company’s common stock in a voting trust or similar arrangement, or subject any shares of the Company’s common stock to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any shares of the Company’s common stock (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with one or more Affiliates of the applicable Original Director with respect to shares of the Company’s common stock acquired in compliance with Section 8(e) below or to the extent such a group may be with the Company or any of its Affiliates;
(d) make or be the proponent of any shareholder nomination or stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise), or encourage any nomination or stockholder proposal, at any meeting of the Company stockholders or in connection with any action in lieu of a meeting;
(e) acquire, or offer, seek or agree to acquire, by purchase or otherwise, beneficial ownership of any shares of the Company’s common stock if, in any such case, immediately after taking such action, the applicable Original Director together with his Affiliates, would, in the aggregate, beneficially own more than 5.0% of the then outstanding shares of the Company’s common stock;
(f) propose, offer or participate in (i) any effort to acquire the Company or any of its subsidiaries or any material assets or operations of the Company or any of its subsidiaries, (ii) form, join, encourage, influence, advise any effort to engage in a transaction or enter into any agreement that would result in beneficial ownership by any way participate in any “group” person or entity or group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes Act) of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other more than a Section 13(d) Group that includes all or some 30% of the persons identified on the Group 13Ds (as defined below) as outstanding shares of the date hereof and their Affiliates and Associates, but not including Company’s common stock at any other entities time or persons not identified on the Group 13Ds as outstanding voting power of the date hereofCompany at any time, (iii) any tender offer, exchange offer, merger, acquisition, share exchange or other business combination involving the Company or any of its subsidiaries, (iv) any effort with respect to share repurchases, dividends or self-tenders, other than as recommended by the Company, (v) any securities plan or proposal that would relate to any of the Company or otherwise items listed in any manner agree, attempt, seek or propose to deposit any securities Item 4 of Schedule 13D promulgated under the Company in any voting trust or similar arrangementExchange Act (except as contemplated hereby), or subject (vi) any securities recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any of the Company its subsidiaries or any material portion of their businesses;
(g) seek to advise, encourage, support or influence any arrangement or agreement person with respect to the voting thereofvoting, except as expressly set forth in this Agreement;
(iii) acquiregiving or withholding of any proxy, offer or propose to acquireconsent, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) authority with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 shares of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and Company’s common stock (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided except that nothing herein will require Common Stock to be sold to shall restrict an Original Director or his Affiliates from providing such advice, encouragement, support or influence (i) that is consistent with the extent Company’s recommendations on such personsmatters or (ii) voting, collectively with their Affiliates and Associatesgiving or withholding of any proxy, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase consent, or similar Company action that reduces the number of outstanding shares of Common Stockother authority);
(ivh) sellpublicly seek in any manner to obtain any waiver, offer consent under, or agree amendment of, any provision of this Section 8;
(i) make or issue or cause to sellbe made or issued any public disclosure, directly announcement or indirectlystatement (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, through swap member of the media or hedging transactions securities analyst) (i) in support of any solicitation described in Section 8(a) above (other than solicitations on behalf of the Board), or otherwise, the securities (ii) in support of any matter described in Section 8(b) or Section 8(d) above;
(j) make any request for stockholder list materials of the Company or any rights decoupled from the underlying securities held by the PW Group/XX Xxxx Group Shareholders or any of their Affiliates to any Third Party (as defined belowunder Section 220(b) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such timeDelaware General Corporation Law or otherwise; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;or
(vk) effect or seek to effect (including, without limitation, by entering enter 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, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement Person with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offerforegoing, or vote by advise, assist, encourage, support or seek to persuade others to take any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company action with respect to any Extraordinary Transactionof the foregoing, or act in concert with others or as part of a group (Bwithin the meaning of Section 13(d)(3) of the Exchange Act) with respect to any of the foregoing. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 8 shall prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof restrict (x) Mxxxxx from offering to purchase securities or assets acting in his capacity as a continuing director of the Company if or member of a committee of the sale Board, or from engaging in private discussions with the Board, any committee, any director or member of such securities the Company management, or assets from requesting or receiving access to any documents or information to which a director or member of a committee is initiated entitled under applicable law, or from being nominated by the Company through an open bidding processBoard or any committee of the Board as a candidate for election or appointment as a director, or (C) prohibit any PW Group Shareholders otherwise limit the exercise in good faith by Mxxxxx of his duties or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase the securities rights in his capacity as a continuing director of the Company in accordance with his fiduciary duties or (y) an Original Director or his Representatives from (i) communicating privately with the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Party, Board or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock any of the Company; provided’s officers regarding any matter in a manner that does not otherwise violate this Section 8, thatso long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications (including, without limitation, in any document or report filed with the case of (B) and (C) above, the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are officers, directors or employees ofSEC), or Disclosing Nominees (as defined belowii) totaking any action necessary to comply with any law, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as rule or regulation in a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event manner that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements does not otherwise violate this Section 8. Each Original Director shall be excluded from all portions of meetings directly relating entitled to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs vote shares of the Company);’s common stock beneficially owned by such Original Director as he determines in his sole discretion and or tender shares of the Company’s common stock in any tender offer or exchange offer.
Appears in 1 contract
Samples: Cooperation and Settlement Agreement (Taronis Fuels, Inc.)
Standstill. (a) Each BRS agrees that, until the expiration of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that two years from the date hereof until the termination of this Agreement in accordance with Section 5 (the “Covered Period”), except as expressly set forth in this Agreement, neither without prior written invitation (on an unsolicited basis) of DLCH's Board of Directors, it nor and its affiliates will not (i) in any manner acquire, agree to acquire or make any proposal or offer or otherwise seek to acquire, directly or indirectly, any securities (or rights in respect thereof), assets or property of DLCH or any of its Affiliates subsidiaries or Associates willof any successor thereto or person in control thereof, and it will cause each whether such agreements or proposals or offers are made with or to DLCH or any of its Affiliates and Associates not tosubsidiaries (or a successor thereto or person in control thereof) or a third party; (ii) enter into or agree, offer, seek or propose to enter into or otherwise be involved in or part of, directly or indirectly in indirectly, any mannermerger, alone acquisition transaction or in concert with others:
other business combination relating to DLCH or any of its subsidiaries or any of their respective assets; (iiii) make, engage in, or in any way participate in, directly or indirectly, any “"solicitation” " of proxies "proxies" (as such terms are used in the proxy rules of the SEC but without regard to Securities Exchange Act of 1934, as amended (the exclusion set forth in Rule 14a-1(l)(2)(iv) of the "Exchange Act")) or consents to vote, or seek to advise, encourage advise or influence any person with respect to the voting of, any voting securities of DLCH or any of its subsidiaries or of any securities of the Company successor thereto or any securities convertible or exchangeable into or exercisable for any such securities person in control thereof, (collectively, “securities of the Company”) for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (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 shareholder meeting) or make or be the proponent of any shareholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(iiiv) form, join, encourage, influence, advise join or in any way participate in any “a "group” " (as such term is defined in within the meaning of Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”) with any persons (other than a Section 13(d) Group that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereofAct) with respect to any voting securities of the Company 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;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any Section 13(d) Group), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, exceed the ownership limit applicable to such persons under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(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/XX Xxxx Group Shareholders DLCH or any of their Affiliates to its subsidiaries or of any Third Party (as defined below) that would knowingly result successor thereto or person in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in more than 5% in the aggregate of the shares of Common Stock outstanding at such timecontrol thereof; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 10% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any transaction approved by written consent of a majority of the Board, excluding the Nominees and their Replacements;
(v) effect seek or seek propose, alone or in concert with others, to effect control or influence the management, Board of Directors or policies of DLCH; (including, without limitation, by entering vi) directly or indirectly enter into any discussions, negotiations, agreements arrangements 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 (except internal discussions and planning activities involving its Representatives) with respect to effect or seek, offer any of the foregoing activities or propose any of such activities to effect any other person (other than its Representatives); (vii) directly or participate inindirectly advise, encourage, assist, act as a financing source for or otherwise invest in any tender other person in connection with any of the foregoing; (viii) publicly disclose any intention, plan or exchange offerarrangement inconsistent with the foregoing. BRS also agrees that, mergerduring such two-year period, consolidationneither it nor any of its affiliates will: (i) request DLCH or its advisors, acquisitiondirectly or indirectly, scheme, arrangement, business combination, recapitalization, reorganization, sale to (1) amend or acquisition waive any provision of material assets, liquidation, dissolution this paragraph (including this sentence) or other extraordinary transaction involving the Company (2) otherwise consent to any action inconsistent with any provision of this paragraph (including this sentence); or (ii) take any initiative with respect to DLCH or any of its subsidiaries or joint ventures that could be reasonably be expected to require DLCH to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, (3) the possibility of a Transaction or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or an Associate thereof of any securities of the Company into any tender or exchange offer, or vote by any PW Group Shareholders or XX Xxxx Group Shareholders or an Affiliate or Associate thereof of any securities of the Company with respect to any Extraordinary Transaction, (B) prohibit any PW Group Shareholders or XX Xxxx Group Shareholders or Affiliate or Associate thereof from offering to purchase securities or assets of the Company if the sale of such securities or assets is initiated by the Company through an open bidding process, similar transaction or (C4) prohibit the possibility of BRS or any PW Group Shareholders other person acquiring control of DLCH, whether by means of a business combination or XX Xxxx Group Shareholders otherwise. Additionally, BRS's Chief Executive Officer may contact DLCH's Chief Executive Officer for the purpose of expressing continuing or Affiliate renewed interest in a Transaction or Associate thereof from offering to purchase the securities of the Company in the event the Company enters into negotiations with a Third Party regarding a proposal to be acquired by such Third Partyany other business relationship, or a Third Party commences a hostile tender offer to acquire all or substantially all of the Common Stock of the Company; provided, provided that, in the case of (B) and (C) aboveunless invited to do so by DLCH's Chief Executive Officer, the PW Group Shareholders or, in the event that one no offer or more of the Nominees or their Replacements are officers, directors or employees of, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days of the Board’s decision to initiate the sale process or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as a bidder, then such Nominees or Replacements shall be excluded from all portions made that would require Xx. Xxxxx X. Bruckmann April 8, 1997 Page 5 disclosure or formal consideration by DLCH or its Board of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);Directors.
Appears in 1 contract
Standstill. (a) Each of the PW Group/XX Xxxx Group Shareholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that i. The Roumell Parties agree that, from the date hereof until the termination of this Agreement in accordance with Section 5 until the Termination Date (the “Covered Standstill Period”), except as expressly set forth in this Agreementthe Roumell Parties shall not, neither it nor any and shall cause each of its their respective Affiliates or Associates will(as such terms are defined in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, and it will cause each of its as amended (the “Exchange Act”)) (such Affiliates and Associates collectively, the “Roumell Affiliates”, and each a “Roumell Affiliate”) and each of the Roumell Affiliates’ respective directors, officers, managers and employees not to, and will direct its and their respective consultants, agents, representatives, attorneys and advisors (to the extent acting on its or their behalf) not to, directly or indirectly indirectly, in any manner, alone or in concert with others:
(i) a. make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) or consents to vote, or seek to advise, encourage or influence any person or entity with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities Securities of the Company”) for the election of individuals to the Board or to approve shareholder stockholder proposals, 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) (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any shareholder stockholder meeting) or make or be the proponent of any shareholder stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) ; b. form, join, encourage, influence, advise or in any way participate in any “group” Group (as such term is defined in Section 13(d)(3) of the Exchange Act for purposes of this Agreement, any such group, a “Section 13(d) Group”Act) with any persons (other than a Section 13(d) Group or entities that includes all or some of the persons identified on the Group 13Ds (as defined below) as of the date hereof and their are not Roumell Affiliates and Associates, but not including any other entities or persons not identified on the Group 13Ds as of the date hereof) with respect to any securities Securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities Securities of the Company in any voting trust or similar arrangement, or subject any securities Securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(iii) c. purchase or otherwise acquire, offer or offer, seek, propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group ownership (including any Section 13(dbeneficial ownership) Group), through swap or hedging transactions or otherwiseof the Securities of the Company, 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 the Company shares of Common Stock, or any rights decoupled from the underlying securities assets or liabilities of the Company that would result in (A) with respect to the PW Group Shareholders (together with their Affiliates and Associates and Roumell Parties owning, controlling or otherwise having any beneficial ownership or other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined ownership interest in accordance with Rule 13d-3 of the Exchange Act, over more than 17.499.99% in the aggregate of the shares of Common Stock outstanding at such time, and (B) with respect to the XX Xxxx Group Shareholders (together with their Affiliates and Associates and any other persons with whom they may be a Section 13(d) Group) having beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, over more than 17.49% in the aggregate of the shares of Common Stock outstanding at such time; provided provided, however, that nothing herein will require any shares of Common Stock to be sold to the extent such persons, collectively with their Affiliates and Associates, that the Roumell Parties exceed the ownership limit applicable to such persons under this paragraph solely Section 2(a)(iii) as the result of a share repurchase or similar other Company action that reduces the number of outstanding shares of Common Stock;
(iv) d. other than through open market or block trade brokered sale transactions where the identity of the purchaser is unknown to the Roumell Parties sell, offer or agree to sell, sell directly or indirectly, through swap or hedging transactions or otherwise, the securities Securities of the Company or any rights decoupled from the underlying securities Securities of the Company held by the PW Group/XX Xxxx Group Shareholders Roumell Parties or any of their Affiliates Roumell Affiliate to any person or entity not a (A) Party to this Agreement, (B) member of the Board, (C) officer of the Company or (D) Roumell Affiliate (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party (as defined below) 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 in more than 5% in the aggregate of the shares of Common Stock outstanding at such time; provided, however, that the foregoing restriction shall not apply to (A) any transaction with a Third Party who already has a Schedule 13G on file with the SEC with respect to its ownership of Common Stock or any Third Party who represents to the PW Group/XX Xxxx Group Shareholders in writing that as a result of the transaction it will file a Schedule 13G with respect to its ownership of Common Stock provided that, unless such Third Party is an Institutional Stockholder (e.g., Fidelity, Vanguard, Dimensional, etc.), such Third Party, together with its Affiliates and Associates, will not, after giving effect to such transaction, own, control or otherwise have beneficial ownership in more than 104.99% in the aggregate of the shares of Common Stock outstanding at such time, or (B) any except in a transaction approved by written consent the Board; provided, however, that this Section 2(a)(iv) shall not apply to any transfer of shares of Common Stock out of a majority of Separately Managed Account if such transfer is initiated by the Board, excluding the Nominees and their Replacementsclient or clients on whose behalf such Separately Managed Account is maintained;
(v) e. 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)effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person or entity to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, division, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or assets (each, an “Extraordinary Transaction”), ) or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not (A) preclude the tender by any PW Group Shareholders the Roumell Parties or XX Xxxx Group Shareholders or an a Roumell Affiliate or an Associate thereof of any securities Securities of the Company into any tender or exchange offeroffer not initiated in breach of any standstill agreement to which the Company is a party;
f. except for settling any such transaction in existence as of April 10, 2020, engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or vote by other similar right (including, without limitation, any PW Group Shareholders put or XX Xxxx Group Shareholders call option or an Affiliate or Associate thereof of any securities of the Company “swap” transaction) with respect to any Extraordinary Transactionsecurity (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 and the value from such a decline exceeds the aggregate value of the Securities of the Company beneficially owned by the Roumell Parties;
(A) call or seek to call any meeting of stockholders, including by written consent, (B) prohibit seek representation on, or nominate any PW Group Shareholders 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 XX Xxxx Group Shareholders otherwise act or seek to act by written consent, (E) conduct a referendum of stockholders, (F) institute any litigation against the Company, its directors or its officers, except for initiating any legal proceeding solely to remedy a breach of or to enforce this Agreement or making counterclaims with respect to any legal proceeding initiated by or on behalf of the Company against the Roumell Parties, or (G) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the Delaware General Corporation Law or otherwise;
h. take any action in support of or make any proposal or request (in each case, other than non-public communications with the Company that are not intended to, and would not reasonably be expected to, require any public disclosure of such communications) that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board or unfilled newly-created directorships; (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, including, without limitation, its capital allocation, business operations or strategies or its management or other personnel; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or the Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person or entity; (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;
i. Except for (A) the Schedule 13D Amendment (as defined below), (B) any amendment to the Schedule 13D (as defined below) regarding any action or transaction contemplated by this Agreement and (C) any amendment to the Schedule 13D required by Section 13(d) of the Exchange Act or any other applicable law, rule or regulation, take any action that would require the Roumell Parties or any Roumell Affiliate to file a statement of beneficial ownership report on Schedule 13D or Associate thereof from offering any amendment thereto with the SEC;
j. make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to purchase 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;
k. enter into any substantive discussions, 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
l. request, directly or indirectly, any amendment or waiver of the foregoing other than non-public communications with the Company if the sale that are not intended to, and would not reasonably be expected to, require any public disclosure of such securities communications. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit or assets is initiated restrict the Roumell Parties from: (A) communicating privately with the Board or the Company’s officers or advisors, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; (B) 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 to the extent having jurisdiction over any Roumell Party or its Affiliates, provided, that a breach by the Company through an open bidding processRoumell Parties of this Agreement is not the cause of the applicable law, rule, regulation or action; or (C) prohibit privately communicating to any PW Group Shareholders of their investors or XX Xxxx Group Shareholders potential investors under a customary non-disclosure agreement publicly available information regarding the Company, provided, that such communications are not otherwise reasonably expected to be publicly disclosed.
ii. During the Standstill Period, the Roumell Parties shall cause all shares of Common Stock beneficially owned, directly or Affiliate indirectly, by them (excluding any shares of Common Stock held in the Separately Managed Accounts, whether held on or Associate thereof from offering after the date hereof), to purchase be present for quorum purposes at the securities Company’s annual and special stockholder meetings and at any adjournments or postponements thereof, and shall vote such shares (i) in favor of all directors nominated by the Board for election at any such meeting and (ii) consistent with the recommendation of the Company in the event the Company enters into negotiations with Board on all other matters submitted to a Third Party regarding a proposal to be acquired by such Third Party, or a Third Party commences a hostile tender offer to acquire all or substantially all vote of the Common Stock stockholders of the Company; provided, thathowever, in the case of (B) and (C) above, the PW Group Shareholders or, that in the event that one Institutional Shareholder Services, Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) both recommend otherwise than the Board with respect to any proposal submitted by the Company or more any of its stockholders (other than proposals relating to the election of directors, “say-on-pay” and the appointment of registered public accountants), each of the Nominees Roumell Parties will be permitted in its discretion to vote in accordance with the recommendation of ISS and Glass Lewis or, if their recommendations differ from each other, in accordance with ISS’ or their Replacements are officersGlass Lewis’ recommendation; provided, directors or employees offurther, or Disclosing Nominees (as defined below) to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, shall have given written notice to the Company of its election to act as a potential bidder for the Company within 10 days that each of the Board’s decision Roumell Parties will be permitted to initiate the sale process vote in its discretion on any proposal in respect of an Extraordinary Transaction or negotiate the Third Party acquisition proposal or the public announcement of the commencement of the hostile tender offer, as applicable, and from after delivery of such notice and until such time as the PW Group Shareholders or, in the event that one or more of the Nominees or their Replacements are employees of, or Disclosing Nominees to, the XX Xxxx Group Shareholders, the XX Xxxx Group Shareholders, as applicable, irrevocably waive their right to participate as any vote regarding a bidder, then such Nominees or Replacements shall be excluded from all portions of meetings directly relating to such sale process and/or third party offers and all information, resolutions, consents and other materials provided to the Nominees or their Replacements shall be redacted to the extent relating to such sale process and/or third party offers (“Disclosing Nominee” means any Nominee or his Replacement who has furnished to the XX Xxxx Group Shareholders or their Affiliates any material, non-public information concerning the business or affairs of the Company);stockholders’ rights plan.
Appears in 1 contract
Samples: Cooperation Agreement (ZAGG Inc)
