Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
Appears in 3 contracts
Sources: Confidentiality Agreement (Talbots Inc), Confidentiality Agreement (TLB Merger Sub Inc.), Confidentiality Agreement (Sycamore Partners, L.P.)
Standstill Agreement. In consideration During the period beginning at the Effective Time and ending on the later of (x) the Confidential Information being furnished day the Stockholder Designee is no longer a director and (y) two weeks prior to the Receiving Party pursuant to this Agreement, deadline for the Receiving Party agrees that, for a period submission of one year from the date notices of this Agreement (or, such shorter period agreed to by stockholder nominations or proposals under the Company with a third party who is provided access to the Confidential Information Bylaws for the purpose of evaluating a possible Transaction, 2017 Annual Meeting (the “Standstill Period”), unless expressly requested by neither of the Stockholders shall, and each of the Stockholders shall cause its Affiliates and Associates under its control or direction, in each case either directly or indirectly, not to:
(a) solicit (as such term is used in the proxy rules of the SEC) proxies or consents, become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act or conduct any other type of referendum (binding or non-binding) in each case with respect to, or from the holders of, any shares of Company Common Stock or assist any third party in any solicitation of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of Company Common Stock in each case in opposition to the recommendation or proposal of the Board;
(b) seek to call, or to request the calling of, a special meeting of the Company’s stockholders, or make a request for a list of the Company’s stockholders or for any books and records of the Company;
(c) except as specifically permitted in Section 3(c) of this Agreement, nominate persons for election to, or seek to remove any person from, the Board or propose any other business at any meeting of the Company’s stockholders or initiate, encourage or participate in any “withhold” or similar campaign with respect to any meeting of the Company’s stockholders;
(d) commence, encourage, support or join as a party any litigation, arbitration or other proceeding (including a derivative action) against or involving the Company or any of its Board current or former directors or officers (including derivative actions) other than to enforce the provisions of Directors this Agreement;
(e) seek or propose any committee thereofmerger, acquisition, recapitalization, restructuring, disposition or other extraordinary transaction involving the Company; or
(f) in writingtake or encourage any action, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (ci) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3Exchange Act) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, (other than any a group comprised solely of the Receiving Party Stockholders and its affiliatestheir respective Affiliates and Associates) with respect to the Company, (dii) otherwise act, alone or in concert with others, to seek representation on or to control, advise, change or influence control the management, board of directorsthe Board or the policies, governing instrumentsstrategy, policies operations or affairs governance of the Company, to control the composition of management or the Board (eexcept as provided in Section 3(c) make any public disclosureof this Agreement), or (iii) take any action that could require would or would reasonably be expected to force the Company or either of the Stockholders to make any a public disclosure, with respect to announcement regarding any of the types of matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery foregoing provisions of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing Section 4 or (giv) have take any discussions action challenging the validity or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with enforceability of any of the provisions of this Section 4. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict the Stockholder Designee from exercising his or her rights and fiduciary duties as a director of the Company. The Receiving Party also agrees during such period foregoing provisions of this Section 4 shall not be deemed to request prohibit either of the Stockholders from (i) engaging in ordinary course stockholder communications (which may include a Stockholder presenting its opinions) privately with the Company or its Board members or employees or (ii) privately requesting a waiver of any of the Company Representatives, directly or indirectly, to amend or waive any provision foregoing provisions of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))4.
Appears in 3 contracts
Sources: Settlement Agreement (Altimeter Capital Management, LP), Confidentiality Agreement (Par Investment Partners Lp), Confidentiality Agreement (United Continental Holdings, Inc.)
Standstill Agreement. In consideration of The Recipient hereby acknowledges and agrees that the Confidential Information Evaluation Material is being furnished to the Receiving Party pursuant to this Agreement, Recipient in consideration of the Receiving Party agrees Recipient’s agreement that, for a period of one year eighteen (18) months from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transactionhereof, the “Standstill Period”)Recipient shall not, unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause Affiliates or its and or their respective Representatives Representatives, or any other person acting on the Recipient’s behalf or at the Recipient’s or its and their respective behalf Affiliates’ direct or indirect instruction, not to): (a) , in any manner manner, acting alone or in concert with others, without the prior written invitation or approval of the Board of Directors of the Disclosing Party, directly or indirectly, (i) acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of acquire any securities of the CompanyDisclosing Party, direct or indirect rights any option to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities)Disclosing Party, any right to vote security convertible into or to direct the voting of exchangeable for any securities of the Company Disclosing Party or any assets other right to acquire any securities of the CompanyDisclosing Party, (bii) seek or propose any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets or securities, dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Disclosing Party, (iii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (whether or not relating to the election or removal of directors), as such terms are used in Regulation 14A promulgated under the proxy rules Exchange Act, with respect to any securities of the Securities and Exchange Commission) or consents to voteDisclosing Party, or seek to advise or influence any person with respect to the voting of, of any voting securities of the CompanyDisclosing Party, or demand a copy of the stock ledger list of stockholders, or any other books and records of the Disclosing Party, (civ) seek to have any candidate for nomination as a director of the Disclosing Party included in the Disclosing Party’s proxy statement pursuant to Regulation 14a-11 promulgated under the Exchange Act (if applicable), (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliatesDisclosing Party, (dvi) otherwise act, alone or in concert with others, to knowingly seek to controlcontrol or influence, advisein any manner, change or influence the management, board Board of directors, governing instruments, Directors or policies or affairs of the CompanyDisclosing Party, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (gvii) have any discussions or enter into any arrangements arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage knowingly encourage, any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not , or make any investment in any other person that engages, or offers or proposes to request the Company or engage, in any of the Company Representativesforegoing, directly or indirectly(viii) make any public announcement regarding any of the foregoing (except as required by law in respect of actions permitted hereby). Notwithstanding anything to the contrary in this Section 9, the Recipient shall be permitted to amend submit a proposal to the Board of Directors of the Disclosing Party that would otherwise be prohibited by the terms of clauses (i) or waive any provision (ii) of the first sentence of this Section 6 (including this sentence). Notwithstanding 9 if any provision in this Agreement such proposal is submitted to the contraryBoard of Directors of the Disclosing Party on a strictly confidential basis. The Recipient will cease to be bound by the provisions of clauses (i), (iii), (vii) and (viii) of this Section 9 upon the Standstill Period shall terminate immediately if, after earliest to occur of the following (the period from the date of this Agreement, Agreement until the earliest to occur of the following being the “Standstill Period”): (A) the Company day that is eighteen (18) months after the date hereof; (B) the Board of Directors of the Disclosing Party approves, or the Disclosing Party enters into into, a definitive agreement transaction with a third party to effectuate a sale of any person that would result in such person beneficially owning (1) 50% or more of the consolidated assets of the Company or Disclosing Party’s outstanding voting securities, (2) securities convertible into 50% or more of the CompanyDisclosing Party’s outstanding equity securities, voting securities or (B3) all or substantially all of the Company publicly announces assets of the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, Disclosing Party; or (C) any person or “group” (within the Company makes an assignment meaning of Section 13(d)(3) of the Exchange Act) shall have commenced a tender offer or exchange offer for 50% or more of the benefit Disclosing Party’s outstanding voting securities and the Board of creditors Directors of the Disclosing Party shall have either recommended that the Disclosing Party’s stockholders tender or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution exchange in such offer or liquidation law failed to recommend that the Disclosing Party’s stockholders reject such offer within ten (10) business days following the commencement of any jurisdiction such offer. Notwithstanding anything to the contrary contained herein, after the Standstill Period, the restrictions set forth in this Agreement on the use of Evaluation Material shall not prevent the Recipient from taking any action referred to in clause (i), (ii), (vii) or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (bviii) of this Section 6 9 that would otherwise be permitted after the Standstill Period; provided that nothing in this Section 9 shall terminate ten days prior detract from or alter the Recipient’s obligations under this Agreement to maintain the expiration confidentiality of the applicable time period for stockholders Evaluation Material or any of the information which is subject to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) Sections 1 and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))2 above.
Appears in 2 contracts
Sources: Confidentiality, Non Competition and Non Solicitation Employment Agreement, Confidentiality Agreement (Alfasigma S.p.A.)
Standstill Agreement. In consideration 5.1 Unless approved in advance by the Board of Directors of the Confidential Information being furnished to the Receiving Party pursuant to this AgreementCompany in writing, the Receiving Party Recipient agrees thatthat neither it nor any of its Affiliates will, for a period of one year from twelve (12) months after the date of this Agreement hereof (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transactionperiod, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): ):
(a) in (1) effect, offer, or propose to effect or offer (i) any manner acting alone tender or in concert with othersexchange offer, acquire, agree to acquire merger or make any proposal to acquire, directly or indirectly, by means of purchase, merger, other business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of involving the Company or any assets of its subsidiaries; (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company, Company or any of its subsidiaries; or (biii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” or shareholder “consents” (as such terms are defined or used in Regulation 14A under the proxy rules Securities Exchange Act of 1934 (as amended and restated, the “Exchange Act”)) with respect to any shares or other securities of the Securities and Company or become a “participant” in any “election contest” or other proxy contest (as such terms are defined or used in Rule 14a-11 under the Exchange CommissionAct) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, ; (c2) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to the Company or the acquisition or voting of any voting securities of the Company, ’s voting shares (other than any a group comprised consisting solely of the Receiving Party Recipient and its affiliatesAffiliates); (3) initiate, or propose any shareholder proposals for submission to a vote or written consent of the Company’s shareholders or propose any Person for election to or seek representation on the Company’s Board of Directors; (d4) otherwise act, alone or in concert with others, to seek to control, advise, change or influence control the management, board Board of directors, governing instruments, Directors or policies or affairs of the Company, ; (e5) make any public disclosure, or take any action that could require which might force the Company to make a public announcement regarding the matters set forth in clauses (a)(1) through (4) above or in Section 5.1(b); or (6) enter into any public disclosurediscussions, arrangements or agreements with any third party, other than its financial, legal or other advisors, with respect to any of the foregoing or the matters set forth in this AgreementSection 5.1(b); or
(b) acquire (or propose or agree to acquire) ownership (including, other than but not limited to, beneficial ownership as defined in Rule 13d-3 under the required amendment to the Receiving Party’s Schedule 13D filing as a result Exchange Act) or control of, by purchase or otherwise, any loans, debt securities or equity securities of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of its subsidiaries, or rights or options to acquire interests in any of the Company RepresentativesCompany’s loans, directly debt securities, equity securities, or indirectlyassets, except to amend the extent resulting exclusively from actions taken by the Company; or
(c) publicly make or announce, or otherwise publicly disclose an intent to propose, any demand, request or proposal to amend, waive or terminate any provision of this Agreement, including requesting a waiver or modification of this Section 6 (including this sentence). 5.1.
5.2 Notwithstanding any provision in this Agreement anything to the contrarycontrary in Section 5.1, (i) Recipient may submit to the Company one or more offers, proposals or indications of interest related to a Transaction between Recipient or its Affiliates and the Company; provided that each submission is made solely to the Company’s Board of Directors or senior management team on a confidential basis and in a manner that would not reasonably be expected to require the Company to make public disclosure of such offer, proposal or indication of interest as reasonably determined by the Company.
5.3 Notwithstanding the foregoing provisions of Section 5.1, the Standstill Period shall terminate expire immediately if, after the date of this Agreement, if (A1) the Company enters into a definitive agreement with any Person(s) other than Recipient or its Affiliates or any group containing Recipient or its Affiliates (a third party “Third Party”), which definitive agreement provides for (a) a tender or exchange offer to effectuate acquire directly or indirectly common stock under circumstances such that, immediately after such acquisition, such Third Party would beneficially own more than a sale of 50% or more majority of the consolidated assets voting power of the outstanding equity securities of the Company or 50% (b) a merger, consolidation or more of other business combination that would result in the Company’s stockholders immediately prior to the consummation of such transaction owning less than a majority of the voting power of the outstanding equity securities, securities of the resulting entity (Band in the ultimate parent company of such resulting company) the Company publicly announces the conclusion immediately following consummation of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, transaction; or (2) such petition application a tender or proceeding exchange offer is not dismissed within 30 days and (ii) made for the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration common stock of the applicable time period for stockholders Company which, if consummated, would result in a Third Party beneficially owning more than a majority of the voting power of the outstanding equity securities of the Company and the Board of Directors of the Company either accepts such offer or fails to nominate directors for election at recommend that its shareholders reject such offer within ten business days from the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance date of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) commencement of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))such offer.
Appears in 2 contracts
Sources: Non Disclosure Agreement (Overseas Shipholding Group Inc), Non Disclosure Agreement (Saltchuk Resources, Inc.)
Standstill Agreement. In consideration The Purchaser hereby agrees that from and after the date hereof until the earlier of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of date one year from after the date of (i) closing of a Qualified Public Offering (as defined in Section 5.01 of this Agreement Agreement) or (orii) registration of a class of the Company's securities under the 1934 Act, unless such shorter period agreed to shall have been specifically invited in writing by the Company with a third party who is provided access to the Confidential Information for the purpose Company, neither Purchaser nor any of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (aas such term is defined under the 1934 ▇▇▇) ▇▇ agents will in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquiremanner, directly or indirectly, by means of purchase(a) effect or seek, mergeroffer or propose (whether publicly or otherwise) to effect, business combination or cause or participate in or in any way assist any other mannerPerson to effect or seek, beneficial ownership offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities of the Company, direct (or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of beneficial ownership of any of such securities), any right to vote thereof) or to direct the voting of any securities of the Company or any assets of the Company, except that during the one-year period from and after a Qualified Public Offering, the Purchaser may acquire capital stock of the Company provided that after any such acquisition, the Purchaser and its affiliates shall beneficially own no more than 10% of each class of the Company's voting securities; (bii) makeany tender or exchange offer, merger or in other business combination involving the Company; (iii) any way participate inrecapitalization, directly restructuring, liquidation, dissolution or indirectly, other extraordinary transaction with respect to the Company; or (iv) any “"solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, vote any voting securities of the Company, ; (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (db) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs control of the Company, 's Board of Directors; or (ec) make any public disclosure, or take any action that could which might require the Company to make any a public disclosure, with respect to announcement regarding any of the types of matters set forth in (a) above. Notwithstanding the above in this AgreementSection 1.05(b), other if (i) following the Company's initial public offering a bona fide tender offer that seeks to acquire more than the required amendment to the Receiving Party’s Schedule 13D filing as a result 50% of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any outstanding voting securities of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with is commenced by a third party unaffiliated with the Purchaser, or (ii) prior to effectuate a sale the Company's initial public offering any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the 1934 ▇▇▇) ▇▇her than the Purchaser and its affiliates acquires more than 50% or more of the consolidated assets Company's outstanding voting securities, then any above restriction contained in this Section 1.05(b) imposed on the Purchaser will immediately terminate, and the Purchaser shall be free to acquire or offer to acquire any or all outstanding shares of the Company. Prior to the Company's initial public offering, the Company will provide written notice to the Purchaser immediately after the Company learns of any such individual, entity or group acquiring more than 25% of the Company's outstanding voting securities. Notwithstanding anything to the contrary in this Section, the Purchaser shall be entitled to acquire securities of the Company or 50% or more pursuant to Section 4.1 of the Company’s outstanding equity securities, Amended and Restated Stockholders' Agreement (Bas defined in Section 2.03(b) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)below).
Appears in 2 contracts
Sources: Series E Convertible Preferred Stock Purchase Agreement (Akamai Technologies Inc), Series D Convertible Preferred Stock Purchase Agreement (Akamai Technologies Inc)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for For a period of one year from commencing with the date of this Agreement and ending on the earlier of (ora) three (3) years following the Closing Date, such shorter period agreed (b) the date when the Investor exercises the Warrant in full, or (c) the occurrence of a Significant Event, other than a Permitted Purchase or with the consent of at least seventy-five percent (75%) of the members of the Board, each of the Investor and Founders agree not to, and to cause their respective Affiliates not to, (i) acquire, offer to acquire, or agree to acquire, by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transactionpurchase or otherwise, the “Standstill Period”any Securities (or beneficial ownership thereof), unless expressly requested by or rights or options to acquire any Securities (or beneficial ownership thereof), or any assets or businesses of the Company or its Board Subsidiaries constituting a significant portion of Directors the consolidated assets of the Company and its Subsidiaries; (ii) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any committee thereofmerger, consolidation, tender or exchange offer, amalgamation, scheme of arrangement, recapitalization, reorganization, liquidation, dissolution, business combination, issuance or repurchase of Securities (including any tender offer) in writingor other extraordinary transaction involving the Company, any of the Receiving Party shall not assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries; (and shall cause its affiliates not iii) advise, encourage, support or influence any Person (except the Board) with respect to and shall cause its and their respective Representatives acting at its and their respective behalf not to): any of the foregoing; (aiv) initiate, or in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquireway participate, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to voteSEC), or seek to advise or influence any person Person or entity with respect to the voting of, of any voting securities Voting Securities of the Company, (c) or form, join or in any way participate in a “group” (within group for the meaning of Section 13(d)(3) purpose of the voting of any Voting Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, Company (other than any group comprised solely of as contemplated hereunder or under the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Shareholders Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing ); or (gv) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to publicly request the Company or any of the Company Representatives, directly or indirectly, to Board amend or waive any provision of this Section 6 paragraph (including this sentence). Notwithstanding any provision in this Agreement to , or contest the contrary, (i) the Standstill Period shall terminate immediately if, after the date validity of this Agreementparagraph (including this sentence); provided, that nothing in the preceding clauses shall (A) restrict the Company enters into Investor from making a definitive agreement with a third party private, non-public, proposal to effectuate a sale the Board for any of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securitiessuch matters, (B) apply to any “beneficial ownership” of Securities acquired or deemed to be acquired by virtue of any of the Company publicly announces arrangements expressly contemplated under the conclusion Transaction Documents, including any voting agreements contemplated under the Shareholders Agreement, or (C) in any way be deemed to require any Investor Director to take (or omitting to take) any actions in a manner he or she reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law (or obligate the Investor to cause any Investor Director to act or omit to act in a manner in which such Investor Director reasonably believes would be inconsistent with the fiduciary duties of the Directors under applicable Law). In addition to any other available remedies, the Investor, Founders or any of their Affiliates, successors or permitted assigns shall not have the right to vote or grant consents with respect to any Securities acquired in violation of this Section 6.4(i) and agrees to promptly sell any such Securities and shall be restrained from voting or granting consents with respect to all of its previously announced strategic review process without a definitive agreement to sell Securities at any annual or special meeting of the stockholders of the Company, (C) however called, or in connection with any action by written consent in lieu of any such annual or special meeting of stockholders of the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) in violation of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f6.4(iv) and (g) any decision, action or transaction by such Person made or effected in violation of this Section 6 6.4(iv) shall be null and void ab initio. Notwithstanding the foregoing, if following any Permitted Purchase made by the Founders, the Investor and its Affiliates and their respective transferees no longer hold, in the aggregate, the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), the Investor shall have the right to purchase such number of shares of Common Stock or other Securities so as to enable the Investor and its Affiliates and their respective transferees to become the holders, in the aggregate, of the largest number of shares of Common Stock of the Company (assuming the conversion of Series B Preferred Stock into Common Stock, and with the Founders deemed as one single shareholder for the purpose of such determination), any such purchases shall not apply be deemed to violate the activities that were previously expressly prohibited by clause (b) provision of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))6.4.
Appears in 2 contracts
Sources: Investor Rights Agreement (Weichai America Corp.), Investor Rights Agreement (Power Solutions International, Inc.)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this AgreementCompany’s agreement set forth in Section 1 above, the Receiving Party ValueAct Group agrees that, for a period of one year from during the date of this Agreement Standstill Period, (or, such shorter period agreed to unless specifically requested in writing by the Company with Company, acting through a third party who is provided access to resolution of a majority of the Confidential Information for Company’s directors not including the purpose of evaluating a possible TransactionValueAct Designee), the “Standstill Period”ValueAct Group shall not, and shall cause their respective directors, officers, partners, members, employees, agents (acting in such capacity), unless expressly requested by controlled investment funds and affiliates (collectively, “Representatives”, provided that no portfolio company of the ValueAct Group shall be deemed a “Representative” so long as such portfolio company (i) has not discussed the Company or its Board of Directors business with the ValueAct Group or the ValueAct Designee, (ii) has not received from the ValueAct Group or any committee thereofthe ValueAct Designee information concerning the Company or its business and (iii) in writing, the Receiving Party shall is not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective the request of, in coordination with or on behalf of the ValueAct Group or the ValueAct Designee) not to): , in any manner, directly or indirectly:
(a) acquire, agree or seek to acquire, directly or indirectly, or make any proposal or offer to acquire, announce any intention to acquire, any securities of the Company (or beneficial ownership thereof) or any securities convertible or exchangeable into or exercisable for any securities of the Company (or beneficial ownership thereof), including, without limitation, any derivative securities or instruments, or any property, asset or business of the Company (other than securities issued pursuant to a stock split, stock dividend or similar corporate action initiated by the Company); provided that nothing herein (i) shall prohibit the ValueAct Group from acquiring additional Ordinary Shares if, following any such acquisition of Ordinary Shares, the ValueAct Group would not own in the aggregate in excess of 12% of the Ordinary Shares outstanding at such time and (ii) will require Ordinary Shares to be sold to the extent the ValueAct Group, collectively, exceeds the ownership limit under this paragraph as the result of a share repurchase or similar Company actions that reduces the number of outstanding Ordinary Shares,
(b) propose to any manner acting Person, or effect or seek to effect, whether alone or in concert with others, acquire, agree to acquire any tender or make any proposal to acquire, directly or indirectly, by means of purchaseexchange offer, merger, consolidation, acquisition, recapitalization, restructuring, liquidation, dissolution, business combination or in any other manner, beneficial ownership of any securities of extraordinary transaction involving the Company, direct or indirect rights to acquire its securities or assets (“Extraordinary Transaction”), provided, however, that this clause shall not preclude the ValueAct Group from (i) tendering any securities of the Company (including owned by the ValueAct Group into any derivative securities with economic equivalents of ownership tender or exchange offer of any of such securities), third party or (ii) voting any right to vote or to direct the voting of any securities of the Company or owned by the ValueAct Group with respect to any assets of the Company, Extraordinary Transaction,
(bc) 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 Securities and Exchange CommissionSEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise advise, encourage or influence any person with respect to the voting of, of any voting securities of the CompanyCompany for the election of individuals to the Board or to approve stockholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (cas such terms are defined or used under the Exchange Act), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise),
(d) form, join join, encourage, influence, advise or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with any persons who are not Representatives, as amended) with respect to any voting securities of the CompanyCompany or otherwise in any manner agree, other than attempt, seek or propose to deposit any group comprised solely voting securities of the Receiving Party Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, except as expressly set forth in this Agreement,
(e) seek to have the Company waive, amend or modify any provisions of the Company’s Memorandum and its affiliatesArticles of Association or Certificate of Incorporation, as the same may otherwise be amended from time to time,
(df) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, ,
(eg) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than including, without limitation, the required amendment to the Receiving Party’s Schedule 13D filing as a result composition of the execution and delivery of this Agreement, Board,
(fh) disclose any intention, plan or arrangement inconsistent with the foregoing or foregoing,
(gi) have any discussions or enter into any arrangements (whether written or oral) withencourage, or advise, assist or encourage facilitate the taking of any actions by any other persons Person in connection with any of the foregoing. The Receiving Party also agrees , or
(j) request during such period not to request the Standstill Period that the Company or any Representative of the Company RepresentativesCompany, directly or indirectly, to amend or waive any provision of this Section 6 paragraph (including this sentence). Notwithstanding any provision Provided that nothing in this Agreement to Section 2 shall limit any actions that may be taken by the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into ValueAct Designee acting as a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets director of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement consistent with his fiduciary duties to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))stockholders.
Appears in 2 contracts
Sources: Nomination Agreement, Nomination Agreement (Willis Group Holdings PLC)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Each Requesting Party agrees that, except as may be approved by the FVE Board in its sole discretion, for a period of one year from commencing on the date of this Agreement hereof and ending on the date that is ten (or, 10) years after the date hereof (such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transactionperiod, the “Standstill PeriodTerm”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writingsuch Requesting Party will not, the Receiving Party shall not (and shall will cause its affiliates not Controlled Affiliates, Permitted Transferees and Representatives to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) not, in any manner acting manner, directly or indirectly, either alone or in concert with othersone or more other Person(s):
(a) effect or seek, acquireoffer or propose (whether publicly or otherwise) to effect, agree cause, participate in or in any way advise, assist or encourage any other Person to acquire effect or make seek, offer or propose (whether publicly or otherwise) to effect, cause or participate in, (A) any proposal to acquiretender or exchange offer, directly merger or indirectly, by means of purchase, merger, other business combination or in extraordinary transaction involving, or any other manner, beneficial ownership sale of any securities all or a substantial portion of the Companyassets of, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of its subsidiaries, other than the CompanyProposed Acquisition; (B) any recapitalization, restructuring, liquidation or dissolution with respect to the Company or any of its subsidiaries; or (bC) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used defined in Rule 14a-1 of Regulation 14A under the proxy rules of the Securities and Exchange Commission▇▇▇▇ ▇▇▇) or consents to vote, vote any Common Shares or seek other voting securities of the Company;
(b) deposit any Common Shares or other voting securities of the Company in a voting trust or subject Common Shares or other voting securities of the Company to advise a voting agreement or influence any person other agreement or arrangement with respect to the voting ofof such shares or securities, any voting securities other than with other Requesting Parties of the Company, this Agreement;
(c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action publicly request that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 Agreement;
(d) take any action (including this sentence). Notwithstanding any provision public announcement or communication with or to the Company) which would reasonably be expected to result in the Company making a public announcement regarding any of the types of matters set forth in this Agreement Section 5.1; or
(e) encourage, assist or enter into any discussions or arrangements with any third party with respect to any of the contrary, (i) the Standstill Period shall terminate immediately if, after the date foregoing. Nothing in Section 5.1 of this Agreement, Agreement shall be deemed to (A1) restrict or limit the Company enters into a definitive agreement Requesting Parties’ ability to discuss any matter confidentially with a third party to effectuate a sale of 50% the Chief Executive Officer or more of the consolidated assets Chief Financial Officer of the Company or 50% with the FVE Board or more any member of the Company’s outstanding equity securitiesFVE Board or to communicate, (B) the Company publicly announces the conclusion of its previously announced strategic review process without on a definitive agreement to sell the Companyconfidential basis, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or with their own Representatives; (2) restrict any director, officer, or manager of any Requesting Party or any of its Controlled Affiliates (including any Requesting Party acting in such petition application capacity) from acting in his, her or proceeding is not dismissed within 30 days and its capacity as a director, trustee, officer or manager of any Public Company (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at including the Company’s 2012 annual stockholders meeting to be scheduled ) in accordance with Section 8 hereof his or her fiduciary, statutory, contractual or similar duties to such Entity or the stockholders thereof; or (and, for 3) restrict any Public Company that is not Controlled by a Requesting Party. For the avoidance of doubt, nothing in this Agreement shall be construed to prevent any Person who is a director, officer, manager or employee of the restrictions Company from performing any duties in clauses (c)such capacity, (d)including, (e)without limitation, (f) and (g) discussing, considering or voting on any matter, interacting with the Board and/or management of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) Company or from participating in any activity of this Section 6 in the event Board and/or the restrictions in clause (b) are terminated pursuant to this clause (ii))Company.
Appears in 2 contracts
Sources: Consent Agreement (Senior Housing Properties Trust), Consent, Standstill, Registration Rights and Lock Up Agreement (Five Star Quality Care, Inc.)
Standstill Agreement. In consideration (a) During the period commencing on the date hereof and ending on the earlier of (i) the fifth anniversary of the Confidential Information being furnished Closing Date (the "Standstill Period") or (ii) the date these provisions terminate as provided herein, except as (x) specifically permitted by this Agreement or (y) specifically approved in writing in advance by the Board of Directors of the Company, the Purchasers shall not, and shall cause any Affiliates controlled by them to not, in any manner, directly or indirectly:
(i) acquire, or offer or agree to acquire, or become the Receiving Party beneficial owner of or obtain any rights in respect of any capital stock of the Company, except, for any shares of Class A Common Stock that may be issuable upon the conversion of the Preferred Shares or otherwise as permitted pursuant to this Agreement, provided, that the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party foregoing limitation shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means prohibit the acquisition of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of its successors issued as dividends or as a result of stock splits and similar reclassifications or received in a consolidation, merger or other business combination in respect of, in exchange for or upon conversion of Preferred Shares or Shares held by the CompanyPurchasers or any of their Affiliates at the time of such dividend, split or reclassification, consolidation or merger or business combination;
(bii) make, solicit proxies or consents or become a "participant" in any way participate in, directly or indirectly, any “a "solicitation” of “proxies” " (as such terms are defined or used in Regulation 14A under the proxy rules Exchange Act) of proxies or consents with respect to any voting securities of the Securities and Company or any of its successors or initiate or become a participant in any stockholder proposal or "election contest" (as such term is defined or used in Rule 14a-11 under the Exchange CommissionAct) with respect to the Company or consents any of its successors or induce others to voteinitiate the same, or otherwise seek to advise or influence any person with respect to the voting of, of any voting securities of the CompanyCompany or any of its successors (except for activities undertaken by the Purchasers or the Purchasers' Directors in connection with solicitations by the Board of Directors);
(iii) publicly or privately propose, encourage, solicit or participate in the solicitation of any person or entity to acquire, offer to acquire or agree to acquire, by merger, tender offer, purchase or otherwise, the Company or a substantial portion of its assets or more than 5% of the outstanding capital stock (cexcept in connection with the registration of securities pursuant to the Registration Rights Agreement); and
(iv) form, directly or indirectly join in or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934pooling agreement, as amended) syndicate, voting trust or other arrangement with respect to any the Company's voting securities or otherwise act in concert with any other Person (other than Affiliates), for the purpose of acquiring, holding, voting or disposing of the Company, other than any group comprised solely 's securities.
(b) Nothing contained in this Section 4.16 shall be deemed to restrict the manner in which the Purchasers' Directors participate in deliberations or discussions of the Receiving Party and its affiliates, Board of Directors.
(dc) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters The standstill provisions set forth in this Agreement, other than herein shall terminate on the required amendment to the Receiving Party’s Schedule 13D filing as a result earliest of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more last day of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securitiesStandstill Period, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) occurrence of this Section 6 shall terminate ten days prior to the expiration a Change of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c)Control, (d)iii) upon any breach by the Company in any material respect of any covenant or agreement contained in this Agreement or in any Transaction Document, or (e), (fiv) and (g) upon the filing of this Section 6 shall a voluntary bankruptcy petition by the Company or on the 60th day following the filing of an involuntary bankruptcy petition against the Company if such petition is not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))discharged with prejudice during such 60-day period.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Forstmann Little & Co Sub Debt & Eq MGMT Buyout Par Vii Lp), Stock Purchase Agreement (Nextlink Communications Inc / De)
Standstill Agreement. In consideration Unless approved in advance in writing by the Board of the Confidential Information being furnished to the Receiving Party pursuant to this AgreementDirectors, the Receiving Party agrees thatneither Investor nor any of its Affiliates shall, for a the period ending on the earlier of one year from (i) the date of this Agreement Closing and (orii) August 18, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction2018, the “Standstill Period”)directly or indirectly, unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with othersany other Person:
(a) make any statement or proposal to the Board of Directors, acquireany of the Company’s Representatives or any of the Company’s shareholders regarding, agree to acquire or make any proposal to acquirepublic announcement, directly proposal, or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company offer (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined or used in the proxy rules Regulation 14A of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosureto, or take any action that could require the Company to make any public disclosureotherwise solicit, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) withseek, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not offer to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 effect (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (andincluding, for the avoidance of doubt, indirectly by means of communication with the restrictions in clauses press or media) (c)i) any business combination, merger, tender offer, exchange offer, or similar transaction involving the Company or any of its Subsidiaries, (d)ii) any restructuring, recapitalization, liquidation, or similar transaction involving the Company or any of its Subsidiaries, (e)iii) any acquisition of any of the Company’s debt securities, Equity Securities or assets, or rights or options to acquire interests in any of the Company’s loans, debt securities, Equity Securities, or assets (f) and (g) of this Section 6 shall not apply other than pursuant to the activities that were previously expressly prohibited by clause Option) or (iv) any proposal to seek representation on the Board of Directors or otherwise seek to control or influence the management, Board of Directors, or policies of the Company (other than as provided in this Agreement);
(b) instigate, encourage, or assist any third party (including forming a “group” with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of this the actions set forth in Section 6 5.6(a);
(c) take any action that would reasonably be expected to require the Company or any of its Affiliates to make a public announcement regarding any of the actions set forth in Section 5.6(a); or
(d) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any debt securities, Equity Securities, or assets of the event Company or any of its Subsidiaries, or rights or options to acquire interests in any of the restrictions in clause Company’s debt securities, Equity Securities, or assets (b) are terminated other than pursuant to this clause (ii)the Option).
Appears in 2 contracts
Sources: Investment Agreement (Rare Element Resources LTD), Investment Agreement (Synchron)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party Each Holder agrees that, for a period of one year from the date of except as provided in this Agreement (oror any other Transaction Agreement, such shorter period agreed to by during the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), neither such Holder nor any of such Holder’s controlled Affiliates will, unless expressly requested specifically invited in writing by the Company Parent, directly or its Board of Directors (or any committee thereof) in writingindirectly, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, any other person: (i) acquire, agree to acquire or make any proposal announce an intention to acquire, directly offer or indirectlypropose to acquire, or agree to acquire, by means of purchasepurchase or otherwise, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights beneficial interest in any voting securities or any rights, warrants or options to acquire acquire, or securities convertible into or exchangeable for, any voting securities of the Company (including any derivative securities with economic equivalents of ownership of Parent or any of such securities), any right to vote its Subsidiaries; (ii) make or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or otherwise become a “participant” in any way participate in, directly or indirectly, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to voteAct), or seek to advise or influence any person or entity with respect to the voting of, of any voting securities of the Company, Parent; (ciii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of Parent; (iv) publicly offer, seek, or propose to acquire, outside the Companyordinary course of business, other than any group comprised solely of the Receiving Party and assets of Parent or any of its affiliatesSubsidiaries, (dv) otherwise actpropose or participate in a proposal to Parent or any of its Affiliates or any other Person with respect to any merger, alone business combination, consolidation, sale, restructuring, reorganization, recapitalization, extraordinary dividend, or in concert with others, to other transaction involving Parent or any of its Subsidiaries; (vi) otherwise seek to control, advise, change or influence the management, board management or Board of Parent or nominate any person as a director who is not nominated by the then incumbent directors, governing instrumentsor propose any matter to be voted upon by the stockholders of Parent or any of its Affiliates; or (vii) announce an intention to take, policies or affairs enter into any arrangement or understanding with others to take, any of the Company, actions restricted or prohibited under clauses (ei) make any public disclosurethrough (vii) of this Section 2.01, or take any action that could require the Company would result in Parent having to make any a public disclosure, with respect to announcement regarding any of the matters set forth referred to in clauses (i) through (vii) of this Section 2.01. Impala may make any request or proposal (but only privately to Parent or the Board of Parent and not publicly) to amend, waive or terminate any provision of this Section 2.01. “Standstill Period” means the five (5) year period beginning on the date hereof. Notwithstanding the foregoing, the restrictions contained in this Agreement, other than the required amendment Section 2.01 shall cease immediately if (x) Parent enters into a definitive agreement to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) withengage in, or advisemakes a public announcement of an intention to engage in, assist a business combination, recapitalization or encourage any other persons transaction that would result in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representativesan acquisition, directly or indirectly, by any other Person or group of a majority of the voting securities or assets of Parent or (y) any tender offer or exchange offer has been commenced for at least a majority of Parent’s voting securities; provided that, in the event that such business combination, recapitalization or other transaction or tender or exchange offer is withdrawn, terminated or otherwise not consummated, each Holder will thereafter be subject to amend or waive any provision of the restrictions contained in this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to 2.01 until the contrary, (i) end of the Standstill Period shall terminate immediately ifPeriod, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely except with respect to clause (b) of this Section 6 shall terminate ten days any transaction that has been proposed by any Holder prior to the expiration time such business combination, recapitalization or other transaction or tender or exchange offer is withdrawn, terminated or otherwise not consummated. Notwithstanding the foregoing, no Holder shall be prohibited from making any confidential, non-public proposal to Parent, provided that such proposal is communicated solely to the Board of the applicable time period for stockholders Directors, or a committee thereof, of Parent, is not reasonably intended to nominate directors for election at the Company’s 2012 annual stockholders meeting require Parent to be scheduled make public disclosure with respect to such proposal and is otherwise held confidential, and distribution thereof is restricted by such Holder and its Representatives in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) terms of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated Agreement as Confidential Information pursuant to this clause (ii))Section 3.03.
Appears in 2 contracts
Sources: Transaction Agreement (Graphic Packaging Holding Co), Transaction Agreement (International Paper Co /New/)
Standstill Agreement. In consideration (a) Except as provided in Section 8.11(b) and contemplated by this Agreement and the transactions contemplated hereby or in connection with the execution and consummation of the Confidential Information being furnished to the Receiving Party pursuant to this AgreementVoting Agreements, the Receiving Party Purchaser agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to unless authorized by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) of the Company in writing, the Receiving Party shall not (and shall cause neither Purchaser nor any of its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (aas such term is defined in the Exchange Act) will in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquiremanner, directly or indirectly, by means of purchase(i) effect or seek, mergeroffer or propose (whether publicly or otherwise) to effect, business combination or cause or participate in or in any way assist any other mannerPerson to effect or seek, beneficial ownership offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (A) any acquisition of any Common Stock or other voting securities of the Company; (B) any tender or exchange offer, direct merger or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of other business combination involving the Company; (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (bD) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC) or consents other agreements to vote, vote any shares of Common Stock or seek to advise or influence any person with respect to the voting of, any other voting securities of the Company, ; (cii) form, join or in any way participate in a “"group” " (within as defined in the meaning of Section 13(d)(3Exchange Act) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) or otherwise act, alone or in concert with others, to seek to control, advise, change control or influence the management, board Board of directors, governing instruments, Directors or policies or affairs of the Company, ; (eiii) make any public disclosure, or take any action that could require which might force the Company to make a public announcement regarding any public disclosure, of the types of matters set forth in subsection (i) above; or (iv) enter into any discussions or arrangements with any Third Party with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, foregoing.
(fb) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision anything in this Agreement to the contrary, (i) in the Standstill Period event that a Third Party shall terminate immediately ifcommence a tender or exchange offer for more than 25% of the outstanding voting securities of the Company, nothing herein shall prevent Purchaser from, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more termination of the consolidated assets Voting Agreements, commencing a tender offer to purchase any outstanding voting securities of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))response thereto.
Appears in 2 contracts
Sources: Merger Agreement (Seracare Inc), Merger Agreement (Grupo Grifols Sa)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for For a period of one year from commencing with the date of this Agreement and ending on the earlier of (or, such shorter period agreed to by i) the Company with a third party who is provided access to date two (2) years after the Confidential Information for date of this Agreement or (ii) the purpose of evaluating a possible Transaction, Termination Date (as defined below) (the “Standstill Period”), unless expressly requested by Investor shall not, without the prior written consent of the Company or its the Company’s Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): Directors: (a) in any manner acting alone or in concert with others, acquire, offer to acquire, or agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchasepurchase or otherwise, merger, business combination voting securities or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any voting securities (A) during such time that Investor beneficially owns (for purposes of Section 13(d) of the Company Exchange Act) five percent (including any derivative securities with economic equivalents 5%) or more of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets power of the Company, or (B) which when added to the Shares then owned by Investor and its subsidiaries, would result in Investor and its subsidiaries beneficially owning (for purposes of Section 13(d) of the Exchange Act) of more than five percent (5%) of the voting power of the Company; (b) make, or in any way participate inparticipate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to voteAct), or seek to advise or influence any person or entity with respect to the voting of, of any voting securities of the Company, ; (c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of its securities or material assets; (d) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not ; (e) otherwise act or seek to request control or influence the management, Board of Directors or policies of the Company; (f) take any action that could reasonably be expected to require the Company or to make a public announcement regarding the possibility of any of the Company Representativesevents described in clauses (a) through (e) above; or (g) publicly request the Company, directly or indirectly, to amend or waive any provision of this Section 6 (including paragraph. For the purposes of this sentence). Notwithstanding any provision in this Agreement to paragraph, the contrary, “Termination Date” shall mean the earliest of (i) the Standstill Period shall terminate immediately if, after date on which the date of this Agreement, Company (A) the Company enters into a definitive agreement with a an unaffiliated third party or parties to effectuate merge, consolidate or otherwise combine, with such third party or parties in a sale of 50% or more of transaction where the consolidated assets of the Company or 50% or more holders of the Company’s outstanding equity shares immediately prior to such merger or consolidation would hold, in the aggregate, securities possessing less than fifty percent (50%) of the total combined voting power of the combined or surviving entity immediately after such merger or consolidation, or to sell substantially all of the Company’s business or assets or securities representing a majority of the then outstanding voting power of the Company’s securities, or (B) makes a public announcement that it is negotiating a transaction with an unaffiliated third party or parties covered by the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, foregoing clause (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence thereinA), or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause date a third party or group (bas defined above) (X) acquires beneficial ownership of voting securities (including those convertible or exchangeable into such voting securities) of this Section 6 shall terminate ten days prior to the expiration Company representing fifteen percent (15%) or more of the applicable time period for stockholders to nominate directors for election at then outstanding voting securities of the Company’s 2012 annual stockholders meeting ; or (Y) announces or commences a tender or exchange offer to be scheduled acquire voting securities of the Company which, if successful, would result in accordance such person or group owning, when combined with Section 8 hereof any other voting securities of the Company owned by such person or group, fifteen percent (and, for 15%) or more of the avoidance then outstanding voting securities of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sonus Pharmaceuticals Inc), Registration Rights Agreement (Schering Berlin Venture Corp)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for For a period of one two (2) year from after the date hereof, neither (i) Seller nor any of this Agreement its affiliates (oras defined in Rule 12b-2 under the Securities Exchange Act of 1934, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, as amended (the “Standstill PeriodExchange Act”)) with respect to Purchaser (referred to as “Other Party” in this section in such respect) nor (ii) Purchaser nor any of its affiliates with respect to Seller (referred to as “Other Party” in this section in such respect) will, individually or collectively, directly or indirectly (including, without limitation, agreeing or advising, assisting or encouraging, or providing information or financing to others to), unless expressly specifically requested in writing in advance by the Company or its Other Party’s Board of Directors Directors: (A) acquire or agree, offer, seek or propose to acquire (or request permission to do so), from any committee thereof) in writingindividual, the Receiving Party shall not partnership, limited partnership, limited liability company, firm, joint venture, association, joint-stock company, corporation, trust, business trust, unincorporated organization or other entity or government or any department or agency thereof (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with otherseach, acquire, agree to acquire or make any proposal to acquirea “Person”), directly or indirectly, by means of purchase, purchase or merger, business combination through the acquisition of control of another Person, by joining a partnership, limited partnership or in any other manner“group” (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of any equity securities of the CompanyOther Party, or direct or indirect rights (including convertible securities) or options or warrants to acquire such beneficial ownership (or otherwise act in concert with respect to any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities, rights or options with any Person that so acquires, offers to acquire or agrees to acquire), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, ; (bB) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of Regulation 14A promulgated under the Securities and Exchange CommissionAct), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 promulgated under the Exchange Act) or consents initiate, propose or otherwise solicit stockholders of Other Party for the approval of any stockholder proposals (or request permission to votedo so), or seek to advise or influence any person in each case with respect to Other Party; provided, however, that the voting of, foregoing shall not apply to any voting securities person who is a director of Other Party acting in his capacity as a director of Other Party with respect to matters approved by a majority of the Company, Board of Directors of Other Party; (cC) form, join or join, in any way participate in in, or encourage the formation of, a “group” group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of Other Party; (D) deposit any securities of Other Party into a voting trust, or subject any securities of Other Party to any agreement or arrangement with respect to the Companyvoting of such securities, or other than any group comprised solely of the Receiving Party and its affiliates, agreement or arrangement having similar effect; (dE) otherwise act, alone or in concert with others, seek, propose, encourage or support any effort, to seek to control, advise, change influence or influence control the management, board Board of Directors, business, policies, affairs or actions of Other Party; (F) request Other Party (or any directors, governing instrumentsofficers, policies employees or affairs agents of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Other Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives), directly or indirectly, to amend amend, waive or waive modify any provision of this Section 6 6.11; (including this sentence). Notwithstanding G) enter into any provision in this Agreement to the contrarydiscussions, (i) the Standstill Period shall terminate immediately ifnegotiations, after the date of this Agreement, (A) the Company enters into a definitive agreement arrangements or understandings with a third any party to effectuate a sale of 50% other than Other Party or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely advisors with respect to clause the foregoing; (bH) of this Section 6 shall terminate ten days prior make any public announcement with respect to the expiration foregoing. If, at any time during such two-year period, Seller or Purchaser is approached by any third party concerning its or their participation in a transaction involving Other Party’s assets or businesses or securities issued by Other Party, Seller or Purchaser as the case may be, will immediately inform Other Party in writing of the applicable time period for stockholders to nominate directors for election at nature of such contact and the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))parties thereto.
Appears in 2 contracts
Sources: Merger Agreement (Optical Cable Corp), Merger Agreement (Preformed Line Products Co)
Standstill Agreement. In consideration During the Cooperation Period, the Atlas Group shall not, and it will cause each of its controlled Affiliates not to, directly or indirectly (including through any director, officer, employee, partner, member, manager, agent or other representative in each case acting on its behalf (each of the Confidential Information being furnished to foregoing, a “Representative”) of the Receiving Party pursuant to this Agreement, Atlas Group or any Affiliate of the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”Atlas Group), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting manner, alone or in concert with others, others (unless expressly permitted in writing by the Board):
(a) (i) acquire, cause to be acquired, or offer, seek or agree to acquire or make any proposal to acquire, directly whether by purchase, tender or indirectlyexchange offer, through the acquisition of control of another person, by means joining or forming a partnership, limited partnership, syndicate or other group (including any group of purchasepersons that would be treated as a single “person” under Section 13(d) of the Exchange Act), merger, business combination through swap or in any other manner, beneficial ownership hedging transactions or otherwise (the taking of any securities such action, an “Acquisition”), Beneficial Ownership of the Company, direct or indirect rights to acquire any equity securities of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities), (ii) acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase or otherwise, any derivative securities with economic equivalents interest in any indebtedness of the Company, (iii) acquire, cause to be acquired, or offer, seek or agree to acquire, ownership (including Beneficial Ownership) of any asset or business of such securities), the Company or any right or option to vote acquire any such asset or to direct the voting of business from any person, in each case other than (x) securities of the Company or any assets (y) in the ordinary course of the Company’s business, (biv) makeacquire, cause to be acquired, enter into any agreement with respect to or offer, seek or agree to acquire, whether by purchase or otherwise, any Synthetic Position, or (v) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose to effect or participate in an Extraordinary Transaction; provided that, nothing in this Agreement shall prohibit any member of the Atlas Group from tendering into a tender or exchange offer available to all stockholders or transferring their shares of Common Stock pursuant to any Extraordinary Transaction with any person that is not a member of the Atlas Group;
(b) other than in accordance with this Agreement, (i) nominate, give notice of an intent to nominate, or recommend for nomination a person for election to the Board (other than pursuant to Section 1(c)) or take any action in respect of the removal of any director, (ii) knowingly seek or encourage any person to submit any nomination in furtherance of a “contested solicitation” with respect to, or take any other action in respect of, the election or removal of any director, (iii) submit, or knowingly seek or encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting, (iv) request, or knowingly initiate, encourage or participate in any request, to call a Stockholder Meeting, (v) seek to amend any provision of the Certificate of Incorporation, By-laws or other governing documents of the Company (each as may be amended from time to time) or (vi) take any action prohibited by clause (i) or (ii) with respect to any subsidiary of the Company;
(c) solicit any proxy, consent or other authority to vote of stockholders or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in, directly or indirectlyknowingly assist, advise, initiate, encourage or influence any person (other than the Company) in, any “solicitation” of “proxies” any proxy, consent or other authority to vote any Voting Securities (as other than such terms are used assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter);
(d) (i) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy rules card for any Stockholder Meeting) or (ii) deposit or agree or propose to deposit any securities of the Securities and Exchange Commission) Company in any voting trust or consents to votesimilar arrangement, or seek subject any securities of the Company to advise any agreement or influence any person arrangement with respect to the voting ofof such securities (including a voting agreement or pooling arrangement), in each case other than (A) any such voting securities trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent, or other authority to vote in connection with a solicitation made by or on behalf of the CompanyCompany or (B) customary brokerage accounts, margin accounts and prime brokerage accounts;
(ce) knowingly encourage, advise or influence any person, or knowingly assist any person in so encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign);
(f) form, join join, knowingly encourage the formation of, or in any way knowingly participate in a “group” any partnership, limited partnership, syndicate or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities Voting Securities (other than a group that includes all or some of the Company, other than any group comprised solely members of the Receiving Party and its affiliatesAtlas Group or any of their Affiliates, (d) otherwise act, alone but does not include any other entities or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs persons that are not members of the CompanyAtlas Group or Affiliates thereof; provided, (e) make any public disclosurehowever, or take any action that could require nothing herein shall limit the Company to make any public disclosure, with respect to any ability of an Affiliate of the matters set forth in this Agreement, other than the required amendment Atlas Group to the Receiving Party’s Schedule 13D filing as a result of join such group following the execution and delivery of this Agreement, (f) disclose so long as any intention, plan or arrangement inconsistent with such Affiliate agrees to be bound by the foregoing or terms and conditions of this Agreement);
(g) have publicly make, publicly advance or publicly disclose any discussions request or enter into any arrangements (whether written or oral) withproposal to amend, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend modify or waive any provision of this Agreement, or take any action challenging the validity or enforceability of any provision of or obligation arising under this Agreement (provided that nothing in this Agreement shall prevent any member of the Atlas Group from taking any action to enforce the provisions of this Agreement or making counterclaims with respect to any action initiated by or on behalf of the Company);
(h) make a request for a list of the Company’s stockholders or for any books and records of the Company whether pursuant to Section 6 220 of the Delaware General Corporation Law or otherwise;
(including i) take any action that would reasonably be expected to require the Atlas Group or the Company to make a public announcement or disclosure regarding the matters set forth in Section 2(a)(v); or
(j) enter into any discussion, negotiation, agreement, arrangement or understanding with any third party (other than another member of the Atlas Group, any Affiliate of the Atlas Group or any of their respective Representatives or any of their respective actual or potential financing sources or advisors as long as it would not reasonably be expected to require the Atlas Group to make a public announcement or disclosure and such activity does not directly or indirectly create any exclusivity, lock-up, dry-up or other similar agreement, arrangement or understanding with any such potential financing source) concerning the matters set forth in Section 2(a)(v) or knowingly encourage, assist, solicit, or seek to cause any person to undertake any action in violation of this sentence)Section 2. Notwithstanding any provision anything in this Agreement to the contrary, the provisions of this Agreement shall not and shall not be deemed to (i) prohibit the Atlas Group or any of its Affiliates or Representatives from communicating privately with the Company’s directors, officers or Representatives, 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) prohibit any New Director, in the exercise of his or her fiduciary duties in good faith and in his or her capacity as a director of the Company, from communicating privately with the Company’s directors, officers or Representatives, 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; (iii) restrict any New Director in the exercise of his or her fiduciary duties in good faith and in his or her capacity a director of the Company; (iv) prevent the Atlas Group or its Affiliates or Representatives from taking any action necessary to comply with or as required by a Legal Requirement, provided that a breach by the Atlas Group of this Agreement is not the cause of the applicable Legal Requirement; or (v) prevent the Atlas Group or any of its Affiliates from, on or prior to the First Trigger Date, making a proposal relating to an Extraordinary Transaction or taking any other action relating thereto or in connection therewith (so long as such other action would not otherwise (x) be prohibited by Section 1(d)(ii) or Sections 2(b)-(h) of this Agreement or (y) be prohibited by Section 2(a)(i)-(iv) except to the extent part of a negotiated Extraordinary Transaction with the Company) if the Company (A) initiates a process to explore an Extraordinary Transaction, or (B) at the direction of or with the permission of the Board or the chair of the Board, engages in or otherwise participates in discussions or negotiations with a third party or its Representatives relating to or that could reasonably be expected to lead to an Extraordinary Transaction having entered into a confidentiality agreement with such third party (and the Company agrees that it shall notify the Atlas Group in writing promptly upon, and in any event within two Business Days of, taking any action described in clause (A) or (B)). The restrictions in this Section 2 shall terminate automatically upon the earliest of (i) the Standstill Period shall terminate immediately ifexpiration of the Cooperation Period; (ii) ten days’ prior written notice delivered by the Atlas Group to the Company following a material breach of this Agreement by the Company (including a failure to appoint or nominate the New Directors or Replacement Directors in accordance with Section 1) if such breach has not been cured within such notice period, after provided that the date Atlas Group is not then in material breach of this Agreement, ; (iii) (A) upon the announcement by the Company enters that it has entered into a definitive agreement with a third party respect to effectuate any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities or a sale of 50% all or more of the consolidated substantially all assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) (x) upon the announcement by the Company publicly announces the conclusion of its previously announced strategic review process without that it has entered into a definitive agreement with respect to sell any Extraordinary Transaction that would not result in the Company, (C) acquisition by any person or group of more than 50% of the Company makes an assignment for the benefit Voting Securities or a sale of creditors all or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law substantially all assets of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (y) the Atlas Group has (1) delivered to each New Director the notice referred to in clause (iv) of each Irrevocable Letter of Resignation and notified the Company indicates its approval thereof, consent thereto or acquiescence therein, or in writing that it has delivered such notices and (2) such petition application or proceeding is not dismissed within 30 days irrevocably waived in writing its rights under Section 1(c)(i); and (iiiv) the Standstill Period solely with respect to clause commencement of any tender or exchange offer (bby a Person other than the Atlas Group or its Affiliates) if (and only if) the Board does not, within ten Business Days of this Section 6 shall terminate ten days prior to such commencement, recommend against acceptance of such tender or exchange offer, and which, if consummated, would constitute an Extraordinary Transaction that would result in the expiration acquisition by any person or group of more than 50% of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))Voting Securities.
Appears in 1 contract
Sources: Cooperation Agreement (ACR Group Paper Holdings LP)
Standstill Agreement. In consideration of The Purchaser hereby agrees that during the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by neither the Company Purchaser nor any of its Affiliates shall, directly or its Board of Directors (or any committee thereof) in writingindirectly, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner manner, acting alone or in concert with othersothers (or solicit, acquirerequest, agree advise, assist or encourage others to) take any of the actions set forth in Section 3.2(i) through 3.2(xi) below:
(i) nominate or propose any candidates for the Board or seek to acquire change or make alter the composition or size or membership of the Board or the removal or replacement of any director or call or seek the call of any meeting of stockholders;
(ii) submit a shareholder proposal to acquireunder Rule 14a-8 of the Securities Exchange Act of 1934, directly or indirectly, to the Company or seek any referendum or the like by means the shareholders of purchasethe Company;
(iii) file a proxy or consent statement in opposition to the Company or otherwise obtain or solicit proxies or consents from any shareholders of the Company or be a participant in or make any solicitation for a matter relating to the Board;
(iv) enter into any contract, merger, business combination arrangement or in understanding with any other manner, beneficial ownership of person with respect to any securities of the Company, direct or indirect rights including but not limited to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting acquisition of any securities (or beneficial ownership thereof), joint venture, loan or option agreement, put or call, guarantee of loans, guarantee of profits or division of losses or profits;
(v) commence or enter into any tender offer or exchange offer, merger, acquisition or other business combination or extraordinary transaction involving the Company or any of its subsidiaries, including any transaction to acquire a majority of the assets of the Company or any assets otherwise effect a change of control of the Company, ;
(b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (cvi) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and Company or its affiliates, securities;
(dvii) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, Board or policies or affairs of the CompanyCompany or take any action to seek the removal of any member of the Board, (e) make any public disclosurechange the size of the Board, obtain additional representation on the Board, or take any other action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment related to the Receiving Party’s Schedule 13D filing as a result of management or the execution and delivery of this Agreement, Board;
(fviii) disclose any intention, plan plan, proposal or arrangement or other matter inconsistent with its obligations under this Section 3.2 (provided that this clause (viii) shall not prohibit a confidential, non-public disclosure with respect to the foregoing matters for which a waiver may be sought under clause (xi) below);
(ix) effect or seek (g) have any discussions or enter including, without limitation, entering into any arrangements discussions, negotiations, agreements or understandings with any third person), offer or propose (whether written publicly or oralotherwise) withto effect, or cause or participate in, or in any way, advise, assist or encourage any other persons person or entity in connection with any action which it is prohibited from taking under this Section 3.2 or which is inconsistent with its obligations under this Section 3.2 (including via any supporting public statement with respect thereto or any adverse public statement regarding the Company or the Board or any of its members);
(x) knowingly take any action which would, or would reasonably be expected to, force the Company to make a public announcement (or result in the Company making a public announcement) regarding any of the foregoing. The Receiving Party also agrees during such period not to request types of the foregoing matters; or
(xi) request, directly or indirectly, any amendment or waiver or modification of, or deviation from, any provision of this Section 3.2 (including this sentence) or any other provision of this Agreement by the Company or any of its agents or representatives (provided that this clause (xi) shall not prohibit the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to Purchaser from confidentially requesting from the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets Board of the Company an amendment, waiver or 50% modification, or more of the Company’s outstanding equity securitiesdeviation, from this Section 3.2 to permit it to engage in a transaction subject to clauses (Biv) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (Dv) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)above).
Appears in 1 contract
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period until the earlier of one year (1) ninety (90) days from the date of this Agreement Agreement; or (or, 2) such shorter period (including any waiver of a standstill) as may be agreed to by the Company with a any third party who is provided access to the Confidential Information for the purpose of evaluating a possible TransactionTransaction (in which event the Company shall provide prompt written notice to the Receiving Party of such shorter period), (the “"Standstill Period”"), unless expressly requested authorized by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing; provided, however, that the Receiving Party's issuance and publication of the letter dated March 30, 2012 shall be deemed not to be a violation of this Section 7. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 7 (including this sentence). Notwithstanding any provision in the terms of this Agreement Section 7, the Receiving Party shall at all times be entitled to make non-public proposals to the contrary, (i) the Standstill Period shall terminate immediately if, after the date Board of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets Directors of the Company or 50% or more of amending any transaction proposal previously made by the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))Receiving Party.
Appears in 1 contract
Sources: Confidentiality Agreement (N. Harris Computer Corp)
Standstill Agreement. In consideration of During the Confidential Information being furnished to eighteen (18) month period following the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement Execution Date (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Restricted Period”), unless expressly requested by without the Company or its Board of Directors (or any committee thereof) in writingCompany’s prior written consent, the Receiving Party shall Purchaser will not (and shall cause will ensure that its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to“affiliates” (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not): (ai) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any manner acting outstanding voting securities of the Company, or any direct or indirect rights or options to acquire any such securities or any securities convertible into such securities, or ownership of all or substantially all of the assets of the Company; (ii) seek or propose, alone or in concert with others, acquire, agree to acquire control or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or influence in any other manner, beneficial ownership manner the management or the Board of any securities Directors of the Company, direct or indirect rights to acquire any securities of the Company ; (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (biii) make, or in any way participate inparticipate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules of under the Securities Exchange Act and Exchange Commissionthe regulations thereunder) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, ; (civ) form, join join, or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, ; (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (ev) make any public disclosureannouncement or proposal with respect to the Transaction or any other transaction or proposed transaction of the type described in the foregoing clauses (i) through (iii) between the parties, any of the Company’s security holders or take any action that could require of the Company to make Company’s affiliates; or (vi) enter into any public disclosurediscussions, negotiations, arrangements or understandings with any third party with respect to any of the matters set forth foregoing; provided, however, that nothing in this Agreement, other than the required amendment letter agreement shall prohibit Purchaser in any way from making any non-public offer or proposal to the Receiving Party’s Schedule 13D filing as a result Company (or the Board of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentenceDirectors thereof). Notwithstanding any provision anything to the contrary in the foregoing sentence, each of the restrictions contained in this Agreement to paragraph (collectively, the contrary, “Standstill”) shall lapse at such time as: (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (Ax) the Company enters into a definitive agreement with any person not affiliated with Purchaser with respect to a third party to effectuate a merger, sale of 50% assets or more securities or other business combination as a result of which such other person would succeed to a majority of the consolidated voting securities, assets or business of the Company Company, or 50% (y) a person not affiliated with Purchaser has commenced an offer (or more publicly announced an intention to offer) to acquire a majority of the Company’s outstanding equity securitiesvoting securities or undertaken (or publicly announced an intention to undertake) a proxy contest with respect to the election of directors of the Company or that would if successful result in such person owning a majority of the outstanding voting securities of the Company, or (Bz) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive discloses that it has waived any standstill or similar provision in any other agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against between the Company and either (1) the Company indicates its approval thereofany third party, consent thereto including any provision analogous or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior substantially similar to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))Standstill.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Applied Genetic Technologies Corp)
Standstill Agreement. In consideration of (a) After the Confidential Information being furnished date hereof and prior to the Receiving Party pursuant to Closing Date or earlier termination of this Agreement, the Receiving Party agrees thatCompany shall not, for a period and shall not permit any of one year from the date of this Agreement (orits Subsidiaries to, such shorter period agreed initiate, solicit, negotiate, encourage or provide confidential information to by facilitate, and the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transactionshall, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall use its reasonable efforts to cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone officer, director or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities employee of the Company, direct or indirect rights any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage or provide nonpublic or confidential information to facilitate, any proposal or offer to acquire all or any securities substantial part of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote business or to direct the voting of any securities properties of the Company or any assets capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, (other than a transaction permitted pursuant to Section 5.5(d)) whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").
(b) make, or in any way participate in, directly or indirectly, any “solicitation” Notwithstanding the provisions of “proxies” paragraph (as such terms are used in the proxy rules of the Securities and Exchange Commissiona) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contraryabove, (i) the Standstill Period shall terminate immediately ifCompany may, in response to an unsolicited written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, could result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the date Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this Agreement), confidential or nonpublic information to a financially capable corporation, partnership, person or other entity or group (Aa "Potential Acquirer") and negotiate with such Potential Acquirer if the Board of Directors of the Company enters into determines in good faith that the failure to provide such confidential or nonpublic information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a definitive agreement breach of its fiduciary duty to the Company's stockholders. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a third party violation of paragraph (a) of this Section 5.5.
(c) The Company shall promptly (but in any event within two (2) business days) notify Parent after receipt of any Acquisition Proposal, indication of interest or request for nonpublic information relating to effectuate a sale of 50% the Company or more of its subsidiaries in connection with an Acquisition Proposal or for access to the consolidated assets properties, books or records of the Company or 50% any subsidiary by any person or more entity that informs the Board of Directors of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition such subsidiary that it is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence thereinconsidering making, or (2) such petition application or proceeding is not dismissed within 30 days has made, an Acquisition Proposal. Such notice to Parent shall be made orally and (ii) in writing and shall indicate in reasonable detail the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration identity of the applicable time period for stockholders to nominate directors for election at offeror and the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (andterms and conditions of such proposal, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))inquiry or contact.
Appears in 1 contract
Standstill Agreement. In consideration For the purposes of this Section 4.11, “Securities” shall refer to the securities of the Confidential Information being furnished Company and any direct or indirect options, warrants or other rights to acquire, or any securities convertible into or exchangeable for, any equity securities of the Receiving Party pursuant Company. Seller represents and warrants to this AgreementPurchaser that as of the Closing Date, neither it nor any of its subsidiaries (other than the Receiving Party Company) shall own any Securities. Seller agrees that, that for a period of one year from the date hereof until the earlier of the termination of this Agreement and three years after Closing (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by neither Seller nor its Representatives (on behalf of Seller) will, directly or indirectly (except within the Company or its Board terms of Directors a specific request from Purchaser), (or any committee thereofi) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly offer or indirectly, by means of purchase, merger, business combination or in any other manner, propose to acquire beneficial ownership of any securities Securities; (ii) seek, propose or submit any offer for any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets or securities, dissolution, liquidation, restructuring, recapitalization or similar transaction or other extraordinary transaction of or involving the Company, direct or indirect rights to acquire involving any securities of the Company Securities; (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (biii) make, 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 Securities and Exchange Commission) proxies or consents (whether or not relating to votethe election or removal of directors) with respect to any Securities, become a participant in any election contest with respect to the Company or seek to advise or influence any person with respect to the voting ofof any Securities or demand a copy of the stock ledger, list of holders of Securities, or any voting securities other books and records of the Company, ; (civ) form, join or in any way participate in a “group” group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, Securities; (dv) otherwise act, alone or in concert with others, to seek to controlcontrol or influence, advisein any manner, change or influence the management, board the Board of directors, governing instruments, Directors of the Company or policies or affairs of the Company; (vi) seek, (e) make any public disclosurealone or in concert with others, or take any action that could require representation on the Board of Directors of the Company to make or seek the removal of any public disclosure, with respect to any member of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result Board of Directors of the execution and delivery Company or a change in the size of this Agreement, the Board of Directors of the Company; (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (gvii) have any discussions or enter into any arrangements arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage encourage, any other persons Persons in connection with any of the foregoing. The Receiving Party also agrees during such period not , or make any investment in any other Person that engages, or offers or proposes to request the Company or engage, in any of the foregoing; (viii) make any publicly disclosed proposal regarding any of the foregoing; or (ix) make any other proposal or statement, or disclose any intention, plan or arrangement, whether written or oral, inconsistent with the foregoing, or request or suggest that the Company Representativesamend, directly waive or indirectly, to amend or waive terminate any provision of this Section 6 (including this sentence)4.11. Notwithstanding Seller shall not sell, transfer, or otherwise dispose of, any provision in this Agreement of the Shares prior to the contraryClosing. As used herein, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof“Representatives” will be deemed to include each Person that is or becomes (a) a subsidiary or other affiliate of such party or (b) an officer, consent thereto director, employee, partner, attorney, advisor, accountant, agent or acquiescence thereinrepresentative of such party or any of such party’s subsidiaries or other affiliates, or and (2) the terms “election contest,” “group,” “solicitation” and “beneficial ownership” have the meanings given to such petition application or proceeding is not dismissed within 30 days terms in the Exchange Act, and (ii) the Standstill Period solely with respect to clause (b) rules and regulations promulgated thereunder. Seller and Purchaser recognize, acknowledge and agree that any remedy at law for any breach of the provisions of this Section 6 shall terminate ten days prior 4.11 would be inadequate. Accordingly, Seller agree that if Seller breaches, or threatens to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (andbreach, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) any provision of this Section 6 4.11, Purchaser will have available, in addition to any other right or remedy otherwise available, the right to preliminary and permanent injunctive relief and other equitable relief to prevent or curtail any such breach or threatened breach and to specific performance of any covenant contained herein, in each case without the proof of actual damage or any bond or similar security being posted, in order that the breach or threatened breach of such provisions may be effectively restrained. Seller further agrees that it will not assert as a claim or defense in any action or proceeding to enforce any provision hereof that Purchaser has or had an adequate remedy at law. No specification in this Section 4.11 of a specific legal or equitable remedy shall not apply to be construed as a waiver or prohibition against the activities that were previously expressly prohibited by clause (b) pursuit of other legal or equitable remedies in the event of a breach or threatened breach of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))4.11.
Appears in 1 contract
Standstill Agreement. In consideration of Without the Confidential Information being furnished to the Receiving Party pursuant to this AgreementCompany's prior written consent, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall you will not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” you will ensure that your Affiliates (as such terms are used defined in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of Rule 12b-2 under the Securities Exchange Act of 1934, as amendedamended (the "Exchange Act")) with respect will not for a period of two years from the date of this Agreement (i) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any voting securities of the Company, other than or any group comprised solely of the Receiving Party and its affiliatesdirect or indirect rights or options to acquire any such securities or any securities convertible into such securities (collectively, "Securities"); (dii) otherwise actseek or propose, alone or in concert with others, to seek to control, advise, change control or influence in any manner the management, board the Board of directorsDirectors or the policies of the Company; (iii) make any proposal or any statement regarding any proposal, governing instrumentswhether written or oral, policies to the Board of Directors of the Company or affairs any director or officer of the Company, (e) or otherwise make any public disclosureannouncement or proposal whatsoever, with respect to any transaction or proposed transaction between the Company or any of its security holders and you or any of your Affiliates, including, without limitation, any Acquisition, tender or exchange offer, merger, sale of assets or securities, or other business combination, unless (a) the Company's Board of Directors or its designated Representatives shall have requested in advance the submission of such proposal, (b) such proposal is directed to the Company's Board of Directors or its designated Representatives, and (c) any public announcement with respect to such proposal is approved in advance by the Company's Board of Directors; (iv) make a request in any form, other than a confidential request directed to the Company in accordance with Paragraph 2(ii) above, that the prohibitions of this Paragraph 9 be waived or that the Company take any action that could require which would permit you to take any of the Company to make actions described in this Paragraph 9; or (v) enter into any public disclosurediscussions, negotiations, arrangements or understandings with any person with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees If at any time during such period not to request you are approached by any person concerning your or their participation in a transaction or proposed transaction involving the Company's assets or businesses or Securities, you will promptly inform the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision nature of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to such contact and the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))parties thereto.
Appears in 1 contract
Sources: Confidentiality and Standstill Agreement (U S Laboratories Inc)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party 1.1 Aura hereby covenants and agrees that, for a period of one year from and after the date of hereof and at all times through and including September 12, 2002, unless this Agreement shall be earlier terminated in accordance with the provisions of Paragraph 6 hereof, Aura will not, nor will it permit its respective Affiliates (or, such shorter period agreed to by as the Company with a third party who term is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors defined hereinbelow):
(or any committee thereofi) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, acquire, or agree to acquire, any beneficial ownership of interest in any equity securities of the Company, direct or indirect rights ,
(ii) to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, make or in any way participate in, directly or indirectly, in any “"solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the United States Securities and Exchange CommissionCommission (the "SEC")) to vote any voting securities of the Company (the "Company Voting Stock") in connection with the election of the directors of the Company or consents to vote, or otherwise seek to advise alter the composition of the Company's Board of Directors,
(iii) to make or in any way participate in any way in any "solicitation" of "proxies" (as such terms are used in the proxy rules of the SEC) to vote Company Voting Stock, with respect to any matter, other than the election of directors of the Company, which matter may be submitted to a vote of the stockholders of the Company,
(iv) to seek to advise, encourage or influence any person with respect to the voting of, of any voting securities of the Company, or induce, attempt to induce or in any manner assist any other person in initiating any stockholder proposal or tender or exchange offer for securities of the Company or any change of control of the Company, or for the purpose of convening a stockholders' meeting of the Company,
(v) to acquire or agree to acquire, by purchase or otherwise, more than 5% of any class of equity securities of any entity which, prior to the time Aura acquires more than 5% of such class, is publicly disclosed (by filing with the SEC or otherwise), or is otherwise known to Aura, to be the beneficial owner of more than 5% of the Company's outstanding Common Stock;
(vi) to make any public announcement regarding any possibility, intention, plan or arrangement relating to a tender or exchange offer for securities of the Company or a business combination (or other similar transaction that would result in a change of control), sale of assets, liquidation or other extraordinary corporate transaction between Aura and the Company, or take any action that could reasonably be expected to require the Company to make a public announcement regarding any of the foregoing;
(vii) to deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of securities of the Company, except as specifically provided in this Agreement;
(viii) to take any action to transfer the beneficial ownership of any of the Shares except as provided in Section 3 of this Agreement, unless (a) the proposed transferee proposes to accept the subject Shares as a gift (and not for the payment of consideration), (b) Aura and the proposed transferee shall so notify the Company in writing fourteen (14) days in advance of the proposed transfer, and (c) the proposed transferee executes a binding agreement, acceptable in form to the Company, between it and the Company in advance of such transfer, committing the proposed transferee to be bound by all of the material terms of this Agreement; or
(ix) to form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934partnership, as amended) with respect to any voting securities of the Companylimited partnership, syndicate association or other than any group comprised solely of the Receiving Party and its affiliates, (d) or otherwise act, alone or act in concert with othersany other person for the purpose of (A) acquiring, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosureholding, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any voting of the Company RepresentativesVoting Stock, directly or indirectly, to amend (B) taking any other actions restricted or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, prohibited under clauses (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, through (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (bix) of this Section 6 shall terminate ten days prior 1, or announcing an intention to the expiration do, or entering into any arrangement or understanding with others to do, any of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in actions restricted or prohibited under clauses (c), i) through (d), (e), (f) and (gix) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))1.
Appears in 1 contract
Sources: Standstill Agreement (Ontro Inc)
Standstill Agreement. In consideration During the period of time commencing on the date hereof (the “Effective Date”) and continuing until the first anniversary of the Confidential Information being furnished to Effective Date, without the Receiving Party pursuant to this Agreementprior consent of the Board (as evidence by a duly adopted resolution), the Receiving Party agrees thatInvestor shall not, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf Affiliates not to): :
(a) in any manner acting alone or in concert with others, acquire, or offer or seek or agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchasepurchase or otherwise (collectively, merger“Acquire”), business combination ownership (beneficial or in any other manner, beneficial ownership otherwise) of any additional securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities assets of the Company or any assets of the Companyits subsidiaries (or any direct or indirect rights or options to acquire such ownership, or otherwise act in concert with respect to any such securities, rights or options with any Person);
(b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 promulgated under the Exchange Act) or initiate, propose or otherwise solicit stockholders of the Securities and Exchange CommissionCompany or its subsidiaries for the approval of any stockholder proposals;
(c) or consents to votemake, or seek participate in, directly or indirectly, in any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries or their securities or assets, provided that nothing in this Section 4 shall be construed to advise limit the Investor’s (or influence any person its Affiliates’) ability to exercise rights that are exercisable by the holders of the class of securities held by the Investor or its Affiliates with respect to the voting of, any voting securities of the Company, a given transaction;
(cd) form, join join, participate in, or in any way participate in encourage the formation of, a “group” group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than Company or any group comprised solely of its subsidiaries;
(e) deposit any securities of the Receiving Party and Company or any of its affiliatessubsidiaries into a voting trust, or subject any securities of the Company or any of its subsidiaries to any agreement or arrangement with respect to the voting of such securities;
(df) otherwise actmake any public announcement with respect to, alone or in concert submit a proposal for, or offer (with othersor without conditions) of any extraordinary transaction involving the Company or any of its subsidiaries or any of their securities or assets;
(g) seek, or encourage or support any effort, to seek to control, advise, change influence or influence control the management, board of directors, governing instrumentsbusiness, or policies or affairs of the Company or any of its subsidiaries, provided that this subclause (g) shall not apply to any actions taken by a representative of the Investor on the Board in his or her capacity as a director or actions taken by the Investor in accordance with agreements between it and the Company, ;
(eh) make encourage or assist any public disclosure, or other Person to undertake any of the foregoing actions; or
(i) take any action that could reasonably be expected to require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of its subsidiaries to make a public announcement regarding the Company Representatives, directly or indirectly, to amend or waive possibility of any provision of the events described in this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
Appears in 1 contract
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party (a) Each Investor agrees that, for a period without the prior written approval of one year the Company, until the date that is twelve months from the date Closing Date, neither the Investor nor any of this Agreement (orits Affiliates will, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transactiondirectly or indirectly, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not toexcept as set forth on Schedule 7.8(a): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets property of the Company, (b) makepropose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the Company, (c) make or participate in any way participate in, directly or indirectly, any “solicitation” solicitation of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents proxies to vote, or seek to advise or influence any person with respect to the voting of, of any voting securities of the Company, (cd) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (de) otherwise act, alone act or in concert with others, to seek to control, advise, change control or influence the management, board of directors, governing instruments, or policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan plan, or arrangement inconsistent with the foregoing foregoing, or (g) have take any discussions action which might require the Company to make a public announcement regarding the possibility of a business combination, merger, acquisition of securities or enter into any arrangements (whether written or oral) withassets, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party similar transaction.
(b) Except as provided above, each Investor also agrees during such period not to request the Company to amend or waive any provision of this paragraph or bring any action or otherwise act to contest the validity of this Section 7.8 or seek a release of the Company Representativesrestrictions contained herein, directly or indirectly, make a request to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary7.8; provided, that (i) Section 7.8(a) shall not apply to any investment activity related to employee benefit or retirement plans conducted in the Standstill Period shall terminate immediately if, after ordinary course of business by any portfolio company with respect to which such Investor is not the date party exercising control over either the day to day operations of this Agreement, such portfolio company or the decision to purchase securities; provided that such Investor does not (A) directly or indirectly provide or make available to such entity any non-public information concerning the Company enters into a definitive agreement and such portfolio company is not acting at the request or direction of or in coordination with a third party to effectuate a sale of 50% such Investor or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of cause such portfolio company or its previously announced strategic review process without a definitive agreement directors, officers, managers, members or other representatives to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences take any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days action that Investor would be prohibited from doing hereby; and (ii) the Standstill Period solely with respect to clause (b) of nothing in this Section 6 7.8 shall terminate ten days prior to prevent the expiration of Investor or its Affiliates from voting any securities beneficially owned by the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled Investor or its Affiliates in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))any manner.
Appears in 1 contract
Standstill Agreement. In consideration Commencing upon the date of the Confidential Information being furnished to the Receiving Party pursuant to execution of this Agreement, and until the Receiving Party agrees that, for a period of one year from Closing or the date termination of this Agreement (orAgreement, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose DMI and/or its subsidiaries and/or its affiliates shall not, and shall not permit any manager, officer or employee of evaluating a possible TransactionDMI or DGLT and/or its subsidiaries and/or its affiliates, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writinginvestment banker, the Receiving Party shall not (and shall cause financial advisor, attorney, accountant or other representative or agent retained by DMI or DGLT and/or its subsidiaries and/or its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination enter into any transaction or act in a way which would in any other mannerevent interfere with DMI consummating this Agreement and/or interfering with, beneficial ownership the transactions which are the subject of any securities of this Agreement (the Company“Transaction”) including, direct but not limited to, (A) soliciting, initiating or indirect rights to acquire any securities of the Company knowingly encouraging (including any derivative securities with economic equivalents by way of ownership of any of such securitiesfurnishing non-public information or assistance), any right to vote inquiries or to direct the voting making of any securities of proposal which constitutes a competing transaction (the Company or any assets of the Company“Competing Transaction”), (bB) make, or participating in any way participate in, directly discussions or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) negotiations with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliatesCompeting Transaction, (dC) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make entering into any public disclosure, or take any action that could require the Company to make any public disclosure, agreement with respect to any Competing Transaction, (D) furnishing to any person any proprietary or confidential information of DMI which could be used to solicit a Competing Transaction, or could be used by such a potential purchaser to make or finance a Competing Transaction or (E) directly engaging in a Competing Transaction. Without the matters set forth in this Agreementprior consent of FTIS, DMI and DGLT shall not, other than in respect of any Excluded Assets:
A. make any change in the required amendment Bylaws of DMI;
B. authorize or issue any Common Stock or any rights, warrants, options or convertible securities of DMI to acquire such interest;
C. conduct the business of DMI in any manner other than in the ordinary course;
D. take any action or omit to do any act which would cause the representations or warranties of DMI contained herein to be untrue or incorrect in any material respect;
E. hire any employee other than in the ordinary course of business;
F. except for liabilities incurred and obligations under contracts entered into in the ordinary course of business, incur any obligation or liability (absolute or contingent), including, but not limited to, any debt or guarantee any such debt or issue or sell any debt securities or guarantee any debt securities of others;
G. declare or make any payment or distribution to its Board of Directors or purchase or redeem any shares of capital stock, except pursuant to the Receiving Party’s Schedule 13D filing as a result of the execution terms and delivery conditions of this Agreement;
H. mortgage, (f) disclose pledge or subject to lien, charge or any intentionother encumbrance, plan any asset, whether tangible or arrangement inconsistent with the foregoing intangible, of DMI other than Excluded Assets; sell, lease or (g) have any discussions or enter into any arrangements (whether written or oral) withotherwise dispose of, or adviseagree to sell, assist lease or encourage otherwise dispose of, any of its assets except in the ordinary course of business unless any such successor assumes any and all outstanding liabilities;
I. commit any act or omit to do any act which would cause a material breach of any agreement, contract or commitment which is listed in Section 10K of Exhibit B and Section 11I of Exhibit C.
J. commit any other persons in connection with act or omit to do any of other act which would have a material adverse effect upon the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence thereinbusiness, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) financial condition of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))DMI.
Appears in 1 contract
Standstill Agreement. In consideration of During the Confidential Information being furnished to the Receiving Party pursuant to this AgreementCooperation Period, the Receiving Party agrees thatBandera shall not, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause each of its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf controlled Affiliates not to): , directly or indirectly (aincluding through any director, officer, employee, partner, member, manager, agent or other representative in each case acting on its behalf (each of the foregoing, a “Representative” and more than one, “Representatives”) of Bandera or any controlled Affiliate of Bandera), in any manner acting manner, alone or in concert with others, others (unless expressly permitted in writing by the Board):
(a) (i) acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining or forming a partnership, limited partnership, syndicate or other group (including any group of Persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership of any equity securities of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities), such that after giving effect to any such Acquisition, Bandera or make any proposal to acquireof its controlled Affiliates holds, directly or indirectly, in excess of that number of Voting Securities held by means Bandera and its controlled Affiliates on the Effective Date; provided, however, it is understood and agreed that any securities acquired pursuant to or underlying any award or grant from the Company with respect to the Bandera Director’s service as a director of purchasethe Company shall be excluded from such restriction, merger(ii) acquire, business combination cause to be acquired, or offer, seek or agree to acquire, whether by purchase or otherwise, any interest in any other manner, beneficial ownership of any securities indebtedness of the Company, direct (iii) acquire, cause to be acquired, or indirect rights offer, seek or agree to acquire, ownership (including Beneficial Ownership) of any asset or business of the Company or any right or option to acquire any such asset or business from any Person, in each case other than (x) securities of the Company or (y) in the ordinary course of the Company’s business, (iv) offer, seek or agree to acquire, whether by purchase or otherwise, any Synthetic Position in any Voting Securities, or (v) effect or seek to effect, offer or propose, or knowingly encourage any other Person to effect or seek to effect, an Extraordinary Transaction; provided, however, that nothing in this Agreement shall prohibit Bandera from (x) tendering into a tender or exchange offer available to all stockholders of the Company or (y) transferring Bandera’s shares of Common Stock pursuant to any Extraordinary Transaction approved by the Board and, if required by applicable law, the stockholders of the Company;
(b) other than in accordance with this Agreement, (i) nominate, give notice of an intent to nominate, or recommend for nomination a natural person for election to the Board or take any action in respect of the removal of any director of the Company, (ii) knowingly seek or encourage any Person to submit any nomination in furtherance of a “contested solicitation” with respect to, or take any other action in respect of, the election or removal of any director of the Company, (iii) submit, or knowingly seek or encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting, (iv) request, or knowingly initiate, encourage or participate in any request, to call a Stockholder Meeting, (v) seek to amend any provision of the certificate of incorporation, bylaws or other governing documents of the Company (each as may be amended from time to time) or (vi) take any action prohibited by clause (i) or (ii) with respect to any subsidiary of the Company; provided, for the avoidance of doubt, that nothing in this Agreement shall prevent Bandera or its controlled Affiliates from taking actions in furtherance of identifying director candidates in connection with the exercise of its rights under Section 1(a) and Section 1(b), so long as such actions do not create a public disclosure obligation for Bandera or the Company and are undertaken on a basis reasonably designed to be confidential;
(c) (i) grant any proxy, consent or other authority to vote with respect to any matters for any Stockholder Meeting or (ii) deposit or agree or propose to deposit any securities of the Company (including in any derivative securities with economic equivalents of ownership of any of such securities)voting trust or similar arrangement, any right to vote or to direct the voting of subject any securities of the Company to any agreement or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person arrangement with respect to the voting ofof such securities (including a voting agreement or pooling arrangement), in each case of clauses (i) and (ii) other than (A) customary brokerage accounts, margin accounts, prime brokerage accounts and the like, (B) granting any voting securities proxy, consent or other authority to vote in any solicitation approved by the Board and consistent with the recommendation of the CompanyBoard, (cC) granting any proxy, consent or other authority to vote in any solicitation pursuant to Schedule 14A in connection with any matter in a manner that is not in contravention of Section 1(d)(ii), or (D) otherwise in accordance with this Agreement;
(d) form, join join, knowingly encourage the formation of, or knowingly participate in any way participate in a “group” partnership, limited partnership, syndicate or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, Voting Securities (other than any a group comprised solely of the Receiving Party that includes Bandera and its affiliatescontrolled Affiliates, (d) otherwise act, alone but does not include any other Persons that are not Bandera or in concert with others, to seek to control, advise, change or influence the management, board any of directors, governing instruments, policies or affairs of the Company, its controlled Affiliates);
(e) make any public disclosurepublicly make, publicly advance or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) publicly disclose any intentionrequest or proposal to amend, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend modify or waive any provision of this Section 6 (including this sentence). Notwithstanding Agreement, or take any action challenging the validity or enforceability of any provision in of or obligation arising under this Agreement (provided, however, that Bandera may make confidential requests to the contraryBoard (or a duly authorized committee thereof) to amend, (i) the Standstill Period shall terminate immediately if, after the date modify or waive any provision of this Agreement, so long as any such request is not publicly disclosed by Bandera and is made by Bandera in a manner that could not reasonably be expected to require, and that does not require, the public disclosure thereof by the Company, Bandera or any other Person (Ait being understood that the Board (or a duly authorized committee thereof) shall have no obligation to grant any such waiver request and may reject such requests in its sole and exclusive discretion); provided, further, that nothing in this Agreement shall prevent Bandera from taking any action to enforce the Company enters into a definitive agreement provisions of this Agreement or making counterclaims with a third party respect to effectuate a sale of 50% any action initiated by or more of the consolidated assets on behalf of the Company or 50% or more against Bandera;
(f) make a request for a list of the Company’s outstanding equity securities, (B) stockholders or for any books and records of the Company publicly announces whether pursuant to Section 220 of the conclusion of its previously announced strategic review process without Delaware General Corporation Law or otherwise;
(g) take any action that would reasonably be expected to require Bandera or the Company to make a definitive agreement to sell public announcement or disclosure regarding the matters set forth in Section 2(a)(v);
(h) enter into any discussion, negotiation, agreement, arrangement or understanding with any third party (other than the Company, (C) the Company makes an assignment for the benefit Bandera, any controlled Affiliate of creditors or commences Bandera, any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed its Representatives or any of its actual or potential financing sources or advisors as long as it would not reasonably be expected to require Bandera to make a public announcement or disclosure and such proceeding is commenced against activity does not directly or indirectly create any exclusivity, lock-up, dry-up or other similar agreement, arrangement or understanding with any such potential financing source) concerning the Company and either matters set forth in Section 2(a)(v); or
(1i) the Company indicates its approval thereofknowingly encourage, consent thereto or acquiescence thereinassist, solicit, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect seek to clause (b) cause any Person to undertake any action in violation of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))2.
Appears in 1 contract
Standstill Agreement. In consideration of During the Confidential Information being furnished to the Receiving Party pursuant to this AgreementCooperation Period, the Receiving Party agrees thatBandera shall not, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause each of its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf controlled Affiliates not to): , directly or indirectly (aincluding through any director, officer, employee, partner, member, manager, agent or other representative in each case acting on its behalf (each of the foregoing, a “Representative” and more than one, “Representatives”) of Bandera or any controlled Affiliate of Bandera), in any manner acting manner, alone or in concert with others, others (unless expressly permitted in writing by the Board):
(a) (i) acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining or forming a partnership, limited partnership, syndicate or other group (including any group of Persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership of any equity securities of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities), such that after giving effect to any such Acquisition, Bandera or make any proposal to acquireof its controlled Affiliates holds, directly or indirectly, in excess of that number of Voting Securities held by means of purchaseBandera and its controlled Affiliates on the Effective Date, merger(ii) acquire, business combination cause to be acquired, or offer, seek or agree to acquire, whether by purchase or otherwise, any interest in any other manner, beneficial ownership of any securities indebtedness of the Company, direct (iii) acquire, cause to be acquired, or indirect rights offer, seek or agree to acquire, ownership (including Beneficial Ownership) of any asset or business of the Company or any right or option to acquire any securities of the Company such asset or business from any Person, in each case other than (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any x) securities of the Company or (y) in the ordinary course of the Company’s business, (iv) offer, seek or agree to acquire, whether by purchase or otherwise, any assets Synthetic Position in any Voting Securities, or (v) effect or seek to effect, offer or propose, or knowingly encourage any other Person to effect or seek to effect, an Extraordinary Transaction; provided, however, that nothing in this Agreement shall prohibit Bandera from (x) tendering into a tender or exchange offer available to all stockholders of the Company or (y) transferring Bandera’s shares of Common Stock pursuant to any Extraordinary Transaction approved by the Board and, if required by applicable law, the stockholders of the Company;
(b) other than in accordance with this Agreement, (i) nominate, give notice of an intent to nominate, or recommend for nomination a natural person for election to the Board or take any action in respect of the removal of any director of the Company, (bii) makeknowingly seek or encourage any Person to submit any nomination in furtherance of a “contested solicitation” with respect to, or take any other action in respect of, the election or removal of any director of the Company, (iii) submit, or knowingly seek or encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting, (iv) request, or knowingly initiate, encourage or participate in any way participate request, to call a Stockholder Meeting, (v) seek to amend any provision of the certificate of incorporation, bylaws or other governing documents of the Company (each as may be amended from time to time) or (vi) take any action prohibited by clause (i) or (ii) with respect to any subsidiary of the Company; provided, for the avoidance of doubt, that nothing in this Agreement shall prevent Bandera or its controlled Affiliates from taking actions in furtherance of identifying director candidates in connection with the exercise of its rights under Section 1(b) and Section 1(c), so long as such actions do not create a public disclosure obligation for Bandera or the Company and are undertaken on a basis reasonably designed to be confidential;
(c) solicit any proxy, consent or other authority to vote of stockholders or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in, directly or indirectlyknowingly assist, advise, initiate, encourage or influence any Person (other than the Company) in, any “solicitation” of “proxies” any proxy, consent or other authority to vote any Voting Securities (as other than such terms are used assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter); provided, however, that the proxy rules foregoing shall not restrict Bandera from stating how it intends to vote with respect to an Extraordinary Transaction, if any, in accordance with Section 1(e)(ii) and the reasons therefor;
(d) (i) grant any proxy, consent or other authority to vote with respect to any matters (other than to the Company’s named proxies at any Stockholder Meeting) or (ii) deposit or agree or propose to deposit any securities of the Securities and Exchange Commission) Company in any voting trust or consents to votesimilar arrangement, or seek subject any securities of the Company to advise any agreement or influence any person arrangement with respect to the voting ofof such securities (including a voting agreement or pooling arrangement), in each case, other than (A) any such voting securities trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent, or other authority to vote in connection with a solicitation made by or on behalf of the CompanyCompany or (B) customary brokerage accounts, margin accounts and prime brokerage accounts;
(ce) knowingly encourage, advise or influence any Person, or knowingly assist any Person in so encouraging, advising or influencing any Person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign); provided, however, that the foregoing shall not restrict ▇▇▇▇▇▇▇ from stating how it intends to vote with respect to an Extraordinary Transaction, if any, in accordance with Section 1(e)(ii) and the reasons therefor;
(f) form, join join, knowingly encourage the formation of, or knowingly participate in any way participate in a “group” partnership, limited partnership, syndicate or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, Voting Securities (other than any a group comprised solely of the Receiving Party that includes Bandera and its affiliatescontrolled Affiliates, (d) otherwise act, alone but does not include any other Persons that are not Bandera or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or its controlled Affiliates);
(g) have publicly make, publicly advance or publicly disclose any discussions request or enter into any arrangements (whether written or oral) withproposal to amend, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend modify or waive any provision of this Agreement, or take any action challenging the validity or enforceability of any provision of or obligation arising under this Agreement (provided, however, that Bandera may make confidential requests to the Board (or a duly authorized committee thereof) to amend, modify or waive any provision of this Agreement, so long as any such request is not publicly disclosed by Bandera and is made by Bandera in a manner that could not reasonably be expected to require, and that does not require, the public disclosure thereof by the Company, Bandera or any other Person (it being understood that the Board (or a duly authorized committee thereof) shall have no obligation to grant any such waiver request and may reject such requests in its sole and exclusive discretion); provided, further, that nothing in this Agreement shall prevent Bandera from taking any action to enforce the provisions of this Agreement or making counterclaims with respect to any action initiated by or on behalf of the Company against Bandera;
(h) make a request for a list of the Company’s stockholders or for any books and records of the Company whether pursuant to Section 6 220 of the Delaware General Corporation Law or otherwise;
(including i) take any action that would reasonably be expected to require Bandera or the Company to make a public announcement or disclosure regarding the matters set forth in Section 2(a)(v);
(j) enter into any discussion, negotiation, agreement, arrangement or understanding with any third party (other than the Company, Bandera, any controlled Affiliate of Bandera, any of its Representatives or any of its actual or potential financing sources or advisors as long as it would not reasonably be expected to require Bandera to make a public announcement or disclosure and such activity does not directly or indirectly create any exclusivity, lock-up, dry-up or other similar agreement, arrangement or understanding with any such potential financing source) concerning the matters set forth in Section 2(a)(v); or
(k) knowingly encourage, assist, solicit, or seek to cause any Person to undertake any action in violation of this sentence)Section 2. Notwithstanding any provision anything in this Agreement to the contrary, the provisions of this Agreement shall not and shall not be deemed to (i) prohibit Bandera or any of its controlled Affiliates or Representatives from communicating privately with the Company’s directors, officers or Representatives regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any Person, (ii) prohibit or restrict the New Director, in the exercise of his or her fiduciary duties in good faith, from taking any action in his or her capacity as a director of the Company, (iii) prohibit Bandera or any of its controlled Affiliates or Representatives from communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Agreement, or (iv) prevent Bandera or its controlled Affiliates or Representatives from taking any action necessary to comply with or as required by a Legal Requirement (as defined below), provided, however, that a breach by ▇▇▇▇▇▇▇ or any of its controlled Affiliates or Representatives of this Agreement is not the cause of the applicable Legal Requirement. The restrictions in this Section 2 shall terminate automatically upon the earliest of: (i) the Standstill Period shall terminate immediately if, after expiration of the date Cooperation Period; (ii) five (5) Business Days’ prior written notice delivered by Bandera to the Company following a material breach of this AgreementAgreement by the Company if such breach has not been cured within such notice period, provided, however, that neither Bandera nor any of its controlled Affiliates or Representatives is then in material breach of this Agreement; (iii) (A) upon the announcement by the Company enters that it has entered into a definitive agreement with a third party respect to effectuate any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities or a sale of 50% all or more of the consolidated substantially all assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) upon the announcement by the Company publicly announces the conclusion of its previously announced strategic review process without that it has entered into a definitive agreement with respect to sell any Extraordinary Transaction that would not result in the Company, (C) acquisition by any person or group of more than 50% of the Company makes an assignment for the benefit Voting Securities or a sale of creditors all or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law substantially all assets of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1iv) the Company indicates commencement of any tender or exchange offer (by a Person other than Bandera or any of its approval thereof, consent thereto controlled Affiliates or acquiescence therein, or Representatives) if (2) such petition application or proceeding is not dismissed within 30 days and (iionly if) the Standstill Period solely with respect to clause (b) Board does not, within ten Business Days of this Section 6 shall terminate ten days prior to such commencement, recommend against acceptance of such tender or exchange offer, and which such tender or exchange offer, if consummated, would constitute an Extraordinary Transaction that would result in the expiration acquisition by any person or group of more than 50% of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))Voting Securities.
Appears in 1 contract
Sources: Nomination and Standstill Agreement (Bandera Partners LLC)
Standstill Agreement. In consideration of During the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from commencing on the date of this Agreement (orand ending on the earlier of the termination of this Agreement or the Closing Date, such shorter period agreed except with respect to the transactions contemplated hereby and by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible TransactionRelated Documents, the “Standstill Period”)Buyer shall not, unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf any Person Controlled by Buyer not to): (a) in any manner acting , directly or indirectly, alone or in concert with others, without the prior written consent of Seller or its Board of Directors: (i) effect, acquire or agree, offer, seek or propose to effect or acquire, agree or cause to acquire or make any proposal to acquirebe acquired, directly or indirectly, by means of purchasepurchase or otherwise, merger, business combination or in any other manner, ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act ) of any voting securities of the Company, or direct or indirect rights or options to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of Seller, or of any successor to or person in control of Seller, any of the Companyassets or businesses of Seller, or of any such successor or controlling person, or any bank debt, claims or other obligations, (cii) effect or agree, offer, seek or propose to effect any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Seller; (iii) seek or propose to influence or control the management or policies of Seller or to obtain representation on Seller’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with respect to any securities of Seller; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving Seller or its securities or assets; (v) enter into any discussions, negotiations, arrangements or understandings with, or otherwise assist or encourage, any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not ; or (vi) seek or request permission or participate in any effort to request the Company or do any of the Company Representatives, directly foregoing or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence thereinmake, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely seek permission to make, any public announcement with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))foregoing.
Appears in 1 contract
Standstill Agreement. In consideration (a) During the period commencing on the Closing Date and ending on the earlier of (i) the fifth anniversary of the Confidential Information being furnished to the Receiving Party pursuant to this AgreementClosing Date, the Receiving Party agrees that, for a period of one year from (ii) six months after the date that the Purchaser no longer possesses the right to nominate a Purchaser Board Nominee, and (iii) a Change of this Agreement Control (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly except as (x) specifically permitted by this Agreement or (y) specifically requested in writing in advance by the Company upon the approval of the Company Board (without any prior solicitation or request or other act encouraging the delivery of such a writing having been made to the Company or the Company Board or otherwise having been publicly made), the Purchaser shall not and, to the extent the Purchaser has provided any Affiliate with Confidential Information that was provided or made available by the Company or its Affiliates to the Purchaser Board Designee or Purchaser Board Nominee, as the case may be, in his or her capacity as such (a “Covered Affiliate”), ensure that such Covered Affiliate, as well as any Subsidiary of Directors (or any committee thereof) in writingthe Purchaser and Assignee, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) not, in any manner acting alone manner, directly or in concert with others, indirectly
(i) acquire, or offer or agree to acquire acquire, or make any proposal or indicate any interest with respect to acquirethe acquisition of, directly or indirectly, by means of purchasepurchase or otherwise, merger, business combination any assets or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities property of the Company (including or its Subsidiaries or any derivative securities with economic equivalents Company Securities; provided, that the foregoing limitation shall not prohibit the acquisition of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of its Subsidiaries issued as dividends or as a result of stock splits and similar reclassifications of Common Stock held by the CompanyPurchaser at the time of such dividend, split or reclassification; and provided, further, that the foregoing limitation shall not prohibit the purchases of goods and services in the ordinary course;
(bii) make, solicit proxies or consents or become a “participant” in any way participate in, directly or indirectly, any a “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the proxy rules Exchange Act) of the Securities and Exchange Commission) proxies or consents with respect to voteany Company Securities, or initiate or become a participant in any stockholder proposal or “election contest” (as such term is defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or induce others to initiate the same, or otherwise seek to advise or influence any person Person with respect to the voting of, of any voting securities Company Securities;
(iii) take any action for the purpose of calling a stockholders’ meeting of the Company;
(iv) make any proposal or any public announcement relating to, or submit to the Company or any of its directors, officers, representatives, trustees, employees, attorneys, advisors, agents or Affiliates any proposal for, a tender or exchange offer for Company Securities that would result in the Purchaser (ctogether with its Covered Affiliates) exceeding the Stock Limitation or a merger, business combination, sale of assets, liquidation, restructuring, recapitalization or other extraordinary corporate transaction relating to the Company or any of its Subsidiaries or take any action that might require the Company or any of its Subsidiaries to make any public announcement regarding any of the foregoing, provided that nothing set forth in this Section 2.1(a)(iv) shall prohibit or restrict the Purchaser from soliciting, offering, seeking to effect and negotiating with any Person with respect to Transfers of Company Securities otherwise permitted by this Agreement, and provided, further, that in so doing, the Purchaser may make any statement required by applicable law, including without limitation, the amendment of any statement on Schedule 13D under the Exchange Act;
(v) deposit Company Securities held by it into a voting trust or subject any such securities to voting agreements (except for this Agreement and except for any such agreement among the Purchaser and any or all of its Covered Affiliates who may hold such securities), or grant any proxy with respect to any such securities to any person not designated by the Company;
(vi) except to the extent contemplated by this Agreement, form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) for the purpose of acquiring, holding, voting or disposing of Company Securities Exchange Act or taking any other actions restricted or prohibited under clauses (i) through (v) above;
(vii) disclose to any Person any intention, plan or arrangement inconsistent with the foregoing;
(viii) advise, assist or encourage any other Person in connection with any of 1934the foregoing;
(ix) enter into any discussions, as amended) negotiations, arrangements or understandings with any other Person with respect to to, or aid, abet or encourage any voting securities action prohibited by, any of the Companyforegoing;
(x) make (publicly or to the Company or any of its directors, other than officers, representatives, trustees, employees, attorneys, advisors, agents, Subsidiaries or security holders, directly or indirectly) any group comprised solely request or proposal to amend, waive or terminate any provision of the Receiving Party and its affiliates, this Section 2 or any inquiry or statement relating thereto; or
(dxi) otherwise act, alone or in concert with others, to seek to control, advise, change control or influence in any material respect the management, board of directors, governing instruments, management or policies or affairs of the Company, Company (e) make beyond the actions of the Purchaser Board Designee or any public disclosurePurchaser Board Nominee in his or her role as such and while serving as a member of the Company Board ). References in this Section 2.1 to the “acquisition” of securities, or take any action derivation of such term, shall include, without limitation, any acquisitions deemed to be purchases for purposes of Section 16 of the Securities Act.
(b) Notwithstanding the provisions of Section 2.1(a), from and after the date six months following the Closing, the Purchaser and its Covered Affiliates may acquire Company Securities through open market and privately negotiated purchases or otherwise if, and only to the extent that, after the acquisition thereof the Purchaser and its Covered Affiliates collectively would beneficially own in the aggregate no more than the number of shares of Common Stock purchased by the Purchaser pursuant to the Master Agreement, as adjusted for any stock dividends, combinations, splits or similar events (such limitation being the “Stock Limitation”). For purposes of clarification, the parties agree that could require under no circumstances shall the Purchaser or any of its Covered Affiliates, prior to the date six months following the Closing, acquire any securities of the Company to make in any public disclosure, with respect to any of the matters set forth in this Agreementmanner, other than the required amendment Common Stock purchased pursuant to the Receiving Party’s Schedule 13D filing Master Agreement or as specifically permitted pursuant to Section 2.1(a).
(c) The Stock Limitation shall not be exceeded in violation of Section 2.1(b) or any other provision of this Agreement if the percentage of the Common Stock beneficially owned by the Purchaser and its Covered Affiliates collectively is increased as a result of corporate action taken solely by the execution Company and delivery not caused by any action taken by the Purchaser or any of its Covered Affiliates, provided, that neither the Purchaser nor any of its Covered Affiliates shall thereafter acquire beneficial ownership of any additional Company Securities unless such acquisition would not result in the Purchaser and its Covered Affiliates beneficially owning outstanding shares of Common Stock of the Company in excess of the Stock Limitation.
(d) Nothing contained in this Section 2 shall be deemed to (i) restrict the manner in which the Purchaser Board Designee or any Purchaser Board Nominee elected to the Company Board may participate in deliberations or discussions of the Company Board or individual consultations with the Chairman of the Company Board or any other members of the Company Board or management, so long as such actions do not otherwise violate any provision of Section 2.1(a), (ii) prohibit or restrict the Purchaser from soliciting, offering, seeking to effect and negotiating with any Person with respect to Transfers of Company Securities otherwise permitted by this Agreement, or (iii) prohibit or restrict the Purchaser or any of its Covered Affiliates from exercising any registration rights pursuant to Section 4 of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
Appears in 1 contract
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Each Requesting Party agrees that, except as may be approved by the FVE Board in its sole discretion, for a period of one year from commencing on the date of this Agreement hereof and ending on the date that is ten (or10) years after the date hereof (such period, the "Standstill Term"), such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible TransactionRequesting Party will not, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall will cause its affiliates not Controlled Affiliates, Permitted Transferees and Representatives to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) not, in any manner acting manner, directly or indirectly, either alone or in concert with othersone or more other Person(s):
(a) effect or seek, acquireoffer or propose (whether publicly or otherwise) to effect, agree to acquire or make any proposal to acquirecause, directly or indirectly, by means of purchase, merger, business combination or participate in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with Person to effect or seek, offer or propose (whether publicly or otherwise) to effect, cause or participate in, (A) any tender or exchange offer, merger or other business combination or extraordinary transaction involving, or any sale of all or a substantial portion of the foregoing. The Receiving Party also agrees during such period not to request assets of, the Company or any of its subsidiaries, other than the Proposed Acquisition; (B) any recapitalization, restructuring, liquidation or dissolution with respect to the Company Representativesor any of its subsidiaries; or (C) any "solicitation" of "proxies" (as such terms are defined in Rule 14a-1 of Regulation 14A under the ▇▇▇▇ ▇▇▇) or consents to vote any Common Shares or other voting securities of the Company;
(b) deposit any Common Shares or other voting securities of the Company in a voting trust or subject Common Shares or other voting securities of the Company to a voting agreement or other agreement or arrangement with respect to the voting of such shares or securities, directly or indirectly, to other than with other Requesting Parties of this Agreement;
(c) publicly request that the Company amend or waive any provision of this Section 6 Agreement;
(d) take any action (including this sentence). Notwithstanding any provision public announcement or communication with or to the Company) which would reasonably be expected to result in the Company making a public announcement regarding any of the types of matters set forth in this Agreement Section 5.1; or
(e) encourage, assist or enter into any discussions or arrangements with any third party with respect to any of the contrary, (i) the Standstill Period shall terminate immediately if, after the date foregoing. Nothing in Section 5.1 of this Agreement, Agreement shall be deemed to (A1) restrict or limit the Company enters into a definitive agreement Requesting Parties' ability to discuss any matter confidentially with a third party to effectuate a sale of 50% the Chief Executive Officer or more of the consolidated assets Chief Financial Officer of the Company or 50% with the FVE Board or more any member of the Company’s outstanding equity securitiesFVE Board or to communicate, (B) the Company publicly announces the conclusion of its previously announced strategic review process without on a definitive agreement to sell the Companyconfidential basis, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or with their own Representatives; (2) restrict any director, officer, or manager of any Requesting Party or any of its Controlled Affiliates (including any Requesting Party acting in such petition application capacity) from acting in his, her or proceeding is not dismissed within 30 days and its capacity as a director, trustee, officer or manager of any Public Company (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at including the Company’s 2012 annual stockholders meeting to be scheduled ) in accordance with Section 8 hereof his or her fiduciary, statutory, contractual or similar duties to such Entity or the stockholders thereof; or (and, for 3) restrict any Public Company that is not Controlled by a Requesting Party. For the avoidance of doubt, nothing in this Agreement shall be construed to prevent any Person who is a director, officer, manager or employee of the restrictions Company from performing any duties in clauses (c)such capacity, (d)including, (e)without limitation, (f) and (g) discussing, considering or voting on any matter, interacting with the Board and/or management of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) Company or from participating in any activity of this Section 6 in the event Board and/or the restrictions in clause (b) are terminated pursuant to this clause (ii))Company.
Appears in 1 contract
Sources: Consent, Standstill, Registration Rights and Lock Up Agreement (ABP Acquisition LLC)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party Each Holder agrees that, for a period of one year from the date of except as provided in this Agreement (oror any other Transaction Agreement, such shorter period agreed to by during the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), neither such Holder nor any of such Holder’s controlled Affiliates will, unless expressly requested specifically invited in writing by the Company Parent, directly or its Board of Directors (or any committee thereof) in writingindirectly, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, any other person: (i) acquire, agree to acquire or make any proposal announce an intention to acquire, directly offer or indirectlypropose to acquire, or agree to acquire, by means of purchasepurchase or otherwise, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights beneficial interest in any voting securities or any rights, warrants or options to acquire acquire, or securities convertible into or exchangeable for, any voting securities of the Company (including any derivative securities with economic equivalents of ownership of Parent or any of such securities), any right to vote its Subsidiaries; (ii) make or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or otherwise become a “participant” in any way participate in, directly or indirectly, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to voteAct), or seek to advise or influence any person or entity with respect to the voting of, of any voting securities of the Company, Parent; (ciii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of Parent; (iv) publicly offer, seek, or propose to acquire, outside the Companyordinary course of business, other than any group comprised solely of the Receiving Party and assets of Parent or any of its affiliatesSubsidiaries, (dv) otherwise actpropose or participate in a proposal to Parent or any of its Affiliates or any other Person with respect to any merger, alone business combination, consolidation, sale, restructuring, reorganization, recapitalization, extraordinary dividend, or in concert with others, to other transaction involving Parent or any of its Subsidiaries; (vi) otherwise seek to control, advise, change or influence the management, board management or Board of Parent or nominate any person as a director who is not nominated by the then incumbent directors, governing instrumentsor propose any matter to be voted upon by the stockholders of Parent or any of its Affiliates; or (vii) announce an intention to take, policies or affairs enter into any arrangement or understanding with others to take, any of the Company, actions restricted or prohibited under clauses (ei) make any public disclosurethrough (vii) of this Section 2.01, or take any action that could require the Company would result in Parent having to make any a public disclosure, with respect to announcement regarding any of the matters set forth referred to in clauses (i) through (vii) of this Section 2.01. Impala may make any request or proposal (but only privately to Parent or the Board of Parent and not publicly) to amend, waive or terminate any provision of this Section 2.01. “Standstill Period” means the five (5) year period beginning on the date hereof. Notwithstanding the foregoing, the restrictions contained in this Agreement, other than the required amendment Section 2.01 shall cease immediately if (x) Parent enters into a definitive agreement to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) withengage in, or advisemakes a public announcement of an intention to engage in, assist a business combination, recapitalization or encourage any other persons transaction that would result in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representativesan acquisition, directly or indirectly, by any other Person or group of a majority of the voting securities or assets of Parent or (y) any tender offer or exchange offer has been commenced for at least a majority of Parent’s voting securities; provided that, in the event that such business combination, recapitalization or other transaction or tender or exchange offer is withdrawn, terminated or otherwise not consummated, each Holder will thereafter be subject to amend or waive any provision of the restrictions contained in this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to 2.01 until the contrary, (i) end of the Standstill Period shall terminate immediately ifPeriod, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely except with respect to clause (b) of this Section 6 shall terminate ten days any transaction that has been proposed by any Holder prior to the expiration time such business combination, recapitalization or other transaction or tender or exchange offer is withdrawn, terminated or otherwise not consummated. Notwithstanding the foregoing, no Holder shall be prohibited from making any confidential, non- public proposal to Parent, provided that such proposal is communicated solely to the Board of the applicable time period for stockholders Directors, or a committee thereof, of Parent, is not reasonably intended to nominate directors for election at the Company’s 2012 annual stockholders meeting require Parent to be scheduled make public disclosure with respect to such proposal and is otherwise held confidential, and distribution thereof is restricted by such Holder and its Representatives in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) terms of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated Agreement as Confidential Information pursuant to this clause (ii))Section 3.03.
Appears in 1 contract
Sources: Governance Agreement (Graphic Packaging International, LLC)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone Except as specifically permitted or in concert with othersrequired by this Restricted Stock Award, acquire, agree to acquire or make any proposal to acquirethe Grantee will not, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities without the prior approval of the Company’s board of directors (the “Company Board”),
(i) acquire (or offer, direct propose or indirect rights agree to acquire acquire) any securities shares of common stock of the Company (“Common Stock”) by any means whatsoever (including pursuant to this Restricted Stock Award) if the total number of shares of Common Stock beneficially owned by the Grantee and its Affiliates and any derivative securities with economic equivalents of other persons whose beneficial ownership of any Common Stock would be aggregated with the Grantee’s for purposes of such securities), any right to vote or to direct the voting of any securities Section 13(d) of the Company or any assets Exchange Act, exceeds 4.999% of the Companytotal number of issued and outstanding shares of Common Stock following such acquisition (including for such purpose the shares of Common Stock issuable upon any conversion or exercise of another security including a warrant). For these purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder;
(bii) makeengage, or become a participant, in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A under the proxy rules of the Securities and Exchange CommissionAct) or consents to votevote any shares of Common Stock;
(iii) grant a proxy or otherwise transfer the right to vote any shares of Common Stock, other than to the Company’s designee(s) pursuant to a proxy solicitation conducted by or on behalf of the Company Board;
(iv) act or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change control or influence the management, board of directors, governing instruments, the Company Board or policies or affairs of the Company (including by seeking to call a shareholders meeting, proposing or nominating any person for election to the Company’s Board, (e) make any public disclosuresubmitting a proposal for action at a shareholders meeting or by consent of the shareholders in lieu of a meeting, proposing a merger, statutory share exchange or other business combination or extraordinary corporate transaction, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, otherwise);
(fv) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or foregoing; or
(gvi) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not foregoing or to request the Company or do any of the Company Representatives, directly or indirectly, to amend or waive any provision foregoing.
(b) The obligations of the Grantee under this Section 6 (including this sentence). Notwithstanding any provision shall terminate in this Agreement to the contrary, event (i) any bona fide third party tender or exchange offer is publicly announced and commenced by any person other than the Standstill Period shall terminate immediately ifGrantee or an affiliate of the Grantee and any other persons whose beneficial ownership of Common Stock would be aggregated with the Grantee’s for purposes of Section 13(d) of the Exchange Act for at least 50% of the outstanding shares of Common Stock that is conditioned upon the offeror receiving tenders for at least 50% of the outstanding shares of Common Stock, after the date of this Agreement, or (Aii) the Company enters into any agreement to merge or enter into a definitive agreement statutory share exchange with a third party any person other than the Grantee or an affiliate of the Grantee or any other persons whose beneficial ownership of Common Stock would be aggregated with the Grantee’s for purposes of Section 13(d) of the Exchange Act following the closing of which the Common Stock would cease to effectuate a sale be registered under the Exchange Act. All of the provisions of this Section shall be reinstated and shall apply in full force according to their terms in the event that: (A) if the provisions of Section 16(a) shall have terminated as the result of clause (i), and such tender or exchange offer (as originally made or as amended or modified) shall have terminated without acquisition by the offeror of at least 50% or more of the consolidated assets outstanding shares of the Company Common Stock; or 50% or more of the Company’s outstanding equity securities, (B) if the Company publicly announces the conclusion provisions of its previously announced strategic review process without Section 16(a) shall have terminated as a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit result of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii), such merger or share exchange agreement shall have been terminated prior to its closing. Upon reinstatement of the provisions of Section 16(a), the provisions of this Section 16(b) shall continue to govern in the event that any of the events described in this Section 16(b) shall subsequently occur.
Appears in 1 contract
Standstill Agreement. In consideration For the period of ten (10) years from the signing of this Settlement Agreement, without the prior written consent of ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ their heirs, executors, administrators, attorneys, assigns, authorized representatives, agents, and any person or entity making or authorized to make any claim by, through, on behalf of, or for ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ (i) ▇▇▇▇, in all capacities, shall not, and shall cause her respective wards, heirs, executors, administrators, attorneys, assigns, authorized representatives, and agents not to and (i) the GAL shall not, and shall cause his wards, administrators, attorneys, assigns and authorized representatives, and agents not to, directly or indirectly, in any manner:
a. acquire, or offer or seek or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Confidential Information being furnished to the Receiving Party pursuant to this AgreementSecurities Exchange Act of 1934, the Receiving Party agrees that, for a period of one year from the date of this Agreement as amended (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill PeriodExchange Act”)), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), unless expressly requested by the Company ownership (beneficial or otherwise) of any securities, debt or assets of RDI or any of its Board of Directors subsidiaries (or any committee thereofdirect or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying voting securities of RDI or any of its subsidiaries, or otherwise act in concert with respect to the Acquisition of such securities, debt, assets, rights or options with any Person);
(i) in writingnominate, give notice of an intent to nominate, or recommend for nomination a person for election to the Receiving Party shall not Board at any Stockholder Meeting at which directors of the Board are to be elected; (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (aii) knowingly initiate, encourage or participate in any manner acting solicitation of proxies in respect of any election contest with respect to RDI’s directors (other than any such solicitation of proxies by the Board); (iii) submit any stockholder proposal (pursuant to Rule 14a-8 or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting; (iv) knowingly initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (v) knowingly initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting or any solicitation of written consents of stockholders; (vi) request, or knowingly initiate, encourage or participate in any request, to call a special meeting of RDI’s stockholders; (vii) seek, alone or in concert with others, acquire, agree to acquire amend any provision of RDI’s charter or make bylaws; or (viii) take any proposal action similar to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights foregoing with respect to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities)RDI’s subsidiaries;
c. make, any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) makeparticipate in, or in any way knowingly assist, facilitate or encourage any other Person to make or participate in, directly any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution, acquisition or indirectlyextraordinary transaction involving RDI or any of its subsidiaries or their securities, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) debt or consents to voteassets;
d. form, join, participate in, or seek to advise or influence any person with respect to knowingly encourage the voting formation of, any voting securities of the Company, (c) form, join or in any way participate in a “group” group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than RDI or any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board subsidiaries;
e. make any request for stockholder list materials of directors, governing instruments, policies or affairs of the Company, (e) RDI;
f. make any public disclosureannouncement with respect to RDI or any of its subsidiaries or any of their securities or assets or businesses;
g. acquire, or take offer or seek or agree to acquire, whether directly or 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 action group of persons that could require would be treated as a single person under Section 13(d) of the Company to make Exchange Act any public disclosure, direct or indirect positions in any securities of RDI involving a “short sale” or similar securities position; and
h. enter into any understandings or arrangements with any Person with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) withactions, or advise, knowingly encourage or assist or encourage any other persons in connection with Person to undertake any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))foregoing actions.
Appears in 1 contract
Sources: Settlement Agreement (James J. Cotter Living Trust)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party (a) Each Purchaser agrees that, for a period of one year from the date of this Agreement until May 2, 2021 (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by without the prior written authorization or invitation of the Company’s board of directors, neither it nor any of its Affiliates or Associates, will, and each Purchaser will cause each of its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) publicly propose or publicly announce or otherwise publicly disclose an intent to propose or enter into or agree to enter into, singly or with any other person, directly or indirectly, (x) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Company or any of its Board subsidiaries, (y) any form of Directors (restructuring, recapitalization, or similar transaction with respect to the Company or any committee thereofof its subsidiaries, or (z) in writingany form of tender or exchange offer for the Common Stock, whether or not such transaction involves a change of control of the Receiving Party Company; provided, however, that this clause (i) shall not preclude the tender by any Purchaser of any securities of the Company into any tender or exchange offer not made, financed, or otherwise supported by the Purchaser or any Affiliate or Associate thereof or preclude the ability of any Purchaser to vote its shares of Common Stock for or against any transaction involving the Company’s securities where the transaction is not proposed or sponsored by any Purchaser or any Affiliate or Associate thereof;
(and shall cause its affiliates not ii) engage in any solicitation of proxies or written consents to and shall cause its and vote any voting securities of the Company, or conduct any non-binding referendum with respect to any voting securities of the Company, or assist or participate (other than by determining how to vote their respective Representatives acting at its and their respective behalf not to): (aown shares) in any manner acting other way, directly or indirectly, in any solicitation of proxies or written consents with respect to any voting securities of the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Securities Exchange Act of 1934, to vote any securities of the Company in opposition to any recommendation or proposal of the Company’s board of directors;
(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) of the Securities Exchange Act of 1934), through swap or hedging transactions or otherwise, any additional securities of the Company or any rights decoupled from the underlying securities of the Company, to the extent that the Purchaser’s total beneficial ownership would exceed in the aggregate (among all of the Purchasers and any Affiliate or Associate thereof) 9.9% of the Common Stock outstanding (except to the extent that the Purchaser’s total beneficial ownership exceeds in the aggregate (among all of the Purchasers and any Affiliate or Associate thereof) 9.9% of the Common Stock outstanding as of the date of this Agreement;
(iv) except in Rule 144 open-market broker-sale transactions where the identity of the purchaser is not known and in underwritten widely-dispersed public offerings, sell, offer, or agree to sell 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 Purchasers to any person or entity not (A) a party to this Agreement, (B) a member of the Company’s board of directors, (C) an officer of the Company, or (D) an Affiliate or Associate of the Purchasers (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any, beneficial, economic or other ownership interest representing in the aggregate in excess of 5% of the shares of Common Stock outstanding at such time;
(v) engage in any short sale 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) except as otherwise set forth in this Agreement, take any action in support of or make any proposal or request that constitutes: (A) controlling, changing, or influencing the Company’s 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 Company’s board of directors, (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 Securities Exchange Act of 1934;
(vii) call or seek to call, or request the call of, alone or in concert with others, acquireany meeting of shareholders, agree to acquire whether or make any proposal to acquirenot such a meeting is permitted by the Company’s Articles of Incorporation or Bylaws, directly including a “town hall meeting”;
(viii) publicly seek, alone or indirectlyin concert with others, representation on the Company’s board of directors, except as expressly permitted by means of purchasethis Agreement;
(ix) initiate, merger, business combination encourage or in any other manner, beneficial ownership of “vote no,” “withhold,” or similar campaign;
(x) deposit any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or Common Stock in any way participate in, directly voting trust or indirectly, subject any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) Common Stock to any arrangement or consents to vote, or seek to advise or influence any person agreement with respect to the voting ofof any Common Stock (other than any such voting trust, any voting securities arrangement, or agreement solely among the members of the CompanyPurchaser that is otherwise in accordance with this Agreement);
(xi) seek, or knowingly encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek or knowingly encourage any action with respect to the election or removal of any directors of the Company or with respect to the submission of any shareholder proposals (cincluding any submission of shareholder proposals pursuant to Rule 14a-8 under the Securities Exchange Act of 1934);
(xii) form, join join, or in any other way participate in a any “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to the Common Stock (other than the Purchasers as a group);
(xiii) demand a copy of the Company’s list of shareholders or its other books and records, whether pursuant to the Minnesota Business Corporation Act (the “MBCA”) or pursuant to any voting securities other statutory right;
(xiv) commence, encourage, or support any derivative action in the name of the Company, other than or any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any class action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request against the Company or any of the Company Representativesits officers or directors in order to, directly or indirectly, effect any of the actions expressly prohibited by this Agreement or cause the Company to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date provisions of this Agreement; provided, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securitieshowever, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, that for the avoidance of doubt, the restrictions in clauses foregoing shall not prevent any of the Purchasers from (c)A) bringing litigation to enforce the provisions of this Agreement, (d)B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a Purchaser, (eC) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or the topics covered in any correspondence between the Company and the Purchasers prior to the date hereof, or (D) exercising statutory dissenter’s, appraisal, or similar rights under the MBCA; provided, further, that the foregoing shall also not prevent the Purchasers 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 in this Section 5.9(a)(xiv);
(xv) disclose publicly or privately in a manner that could reasonably be expected to become public any intent, purpose, plan, or proposal with respect to the Company’s 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;
(fxvi) and enter into any negotiations, agreements, or understandings with any person or entity with respect to any of the foregoing, or advise, knowingly assist, knowingly encourage, or knowingly seek to persuade any person or entity 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;
(gxvii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party;
(xviii) take any action challenging the validity or enforceability of any of the provisions of this Section 6 shall not apply 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 activities that were previously expressly prohibited by clause media, or securities analyst) of, any intent, purpose, plan, or proposal to either (A) obtain any waiver or consent under, or any amendment of, any provision of this Agreement, or (B) take any action challenging the validity or enforceability of any provisions of this Section; or
(xix) otherwise take, or solicit, cause or encourage others to take, any action inconsistent with the foregoing.
(b) Notwithstanding the foregoing, the provisions of this Section 6 shall not limit in any respect the actions of any director or executive officer of the Company (including ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) in his or her capacity as such, recognizing that such actions are subject to such director’s and officer’s fiduciary duties to the Company and its shareholders (it being understood and agreed that neither the Purchasers nor any of their Affiliates or Associates shall seek to do indirectly through the ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in their capacity as directors or officers anything that would be prohibited if done by any of the Purchasers or their Affiliates and Associates directly).
(c) The foregoing provisions of this Section shall not be deemed to prohibit the Purchasers or their directors, officers, partners, employees, members, or agents, in each case acting in such capacity (“Purchaser Agents”), from communicating privately regarding or privately advocating for or against any of the matters described in this Section 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 or requests.
(d) As of the date of this Agreement, none of the Purchasers is engaged in any discussions or negotiations with any person, and none of the Purchasers has any agreements, arrangements, or understandings, written or oral, formal or informal, and whether or not legally enforceable, with any person concerning the acquisition of economic ownership of any securities of the Company, and none of the Purchasers has actual and non-public knowledge that any other shareholders of the Company, including any shareholders that have a Schedule 13D currently on file with the SEC with respect to the Company, have any present or future intention of taking any actions that if taken by the Purchasers would violate any of the terms of this Agreement. The Purchasers agree to refrain from taking any actions during the Standstill Period to intentionally encourage other shareholders of the Company or any other persons to engage in any of the actions referred to in the event previous sentence.
(e) As used in this Agreement, the restrictions term “Associate” shall have the meaning set forth in clause Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Securities Exchange Act of 1934; the terms “economic owner” and “economically own” shall have the same meanings as “beneficial owner” and “beneficially own,” except that a person will also be deemed to economically own and to be the economic owner of (bi) are terminated all shares of Common Stock that such person has the right to acquire pursuant to this clause the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (ii) all shares of Common Stock in which such person has any economic interest, including pursuant to a cash-settled call option or other derivative security, contract, or instrument in any way related to the price of shares of Common Stock; 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 any kind or nature; and the term.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Invicta Media Investments, LLC)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party (a) Each Purchaser agrees that, for a period of one year from the date of this Agreement until May 2, 2021 (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by without the prior written authorization or invitation of the Company’s board of directors, neither it nor any of its Affiliates or Associates, will, and each Purchaser will cause each of its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) publicly propose or publicly announce or otherwise publicly disclose an intent to propose or enter into or agree to enter into, singly or with any other person, directly or indirectly, (x) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Company or any of its Board subsidiaries, (y) any form of Directors (restructuring, recapitalization, or similar transaction with respect to the Company or any committee thereofof its subsidiaries, or (z) in writingany form of tender or exchange offer for the Common Stock, whether or not such transaction involves a change of control of the Receiving Party Company; provided, however, that this clause (i) shall not preclude the tender by any Purchaser of any securities of the Company into any tender or exchange offer not made, financed, or otherwise supported by the Purchaser or any Affiliate or Associate thereof or preclude the ability of any Purchaser to vote its shares of Common Stock for or against any transaction involving the Company’s securities where the transaction is not proposed or sponsored by any Purchaser or any Affiliate or Associate thereof;
(and shall cause its affiliates not ii) engage in any solicitation of proxies or written consents to and shall cause its and vote any voting securities of the Company, or conduct any non-binding referendum with respect to any voting securities of the Company, or assist or participate (other than by determining how to vote their respective Representatives acting at its and their respective behalf not to): (aown shares) in any manner acting other way, directly or indirectly, in any solicitation of proxies or written consents with respect to any voting securities of the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Securities Exchange Act of 1934, to vote any securities of the Company in opposition to any recommendation or proposal of the Company’s board of directors;
(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) of the Securities Exchange Act of 1934), through swap or hedging transactions or otherwise, any additional securities of the Company or any rights decoupled from the underlying securities of the Company, to the extent that the Purchaser’s total beneficial ownership would exceed in the aggregate (among all of the Purchasers and any Affiliate or Associate thereof) 9.9% of the Common Stock outstanding (except to the extent that the Purchaser’s total beneficial ownership exceeds in the aggregate (among all of the Purchasers and any Affiliate or Associate thereof) 9.9% of the Common Stock outstanding as of the date of this Agreement;
(iv) except in Rule 144 open-market broker-sale transactions where the identity of the purchaser is not known and in underwritten widely-dispersed public offerings, sell, offer, or agree to sell 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 Purchasers to any person or entity not (A) a party to this Agreement, (B) a member of the Company’s board of directors, (C) an officer of the Company, or (D) an Affiliate or Associate of the Purchasers (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any, beneficial, economic or other ownership interest representing in the aggregate in excess of 5% of the shares of Common Stock outstanding at such time;
(v) engage in any short sale 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) except as otherwise set forth in this Agreement, take any action in support of or make any proposal or request that constitutes: (A) controlling, changing, or influencing the Company’s 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 Company’s board of directors, (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 Securities Exchange Act of 1934;
(vii) call or seek to call, or request the call of, alone or in concert with others, acquireany meeting of shareholders, agree to acquire whether or make any proposal to acquirenot such a meeting is permitted by the Company’s Articles of Incorporation or Bylaws, directly including a “town hall meeting”;
(viii) publicly seek, alone or indirectlyin concert with others, representation on the Company’s board of directors, except as expressly permitted by means of purchasethis Agreement;
(ix) initiate, merger, business combination encourage or in any other manner, beneficial ownership of “vote no,” “withhold,” or similar campaign;
(x) deposit any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or Common Stock in any way participate in, directly voting trust or indirectly, subject any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) Common Stock to any arrangement or consents to vote, or seek to advise or influence any person agreement with respect to the voting ofof any Common Stock (other than any such voting trust, any voting securities arrangement, or agreement solely among the members of the CompanyPurchaser that is otherwise in accordance with this Agreement);
(xi) seek, or knowingly encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek or knowingly encourage any action with respect to the election or removal of any directors of the Company or with respect to the submission of any shareholder proposals (cincluding any submission of shareholder proposals pursuant to Rule 14a-8 under the Securities Exchange Act of 1934);
(xii) form, join join, or in any other way participate in a any “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to the Common Stock (other than the Purchasers as a group);
(xiii) demand a copy of the Company’s list of shareholders or its other books and records, whether pursuant to the Minnesota Business Corporation Act (the “MBCA”) or pursuant to any voting securities other statutory right;
(xiv) commence, encourage, or support any derivative action in the name of the Company, other than or any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any class action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request against the Company or any of the Company Representativesits officers or directors in order to, directly or indirectly, effect any of the actions expressly prohibited by this Agreement or cause the Company to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date provisions of this Agreement; provided, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securitieshowever, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, that for the avoidance of doubt, the restrictions in clauses foregoing shall not prevent any of the Purchasers from (c)A) bringing litigation to enforce the provisions of this Agreement, (d)B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a Purchaser, (eC) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or the topics covered in any correspondence between the Company and the Purchasers prior to the date hereof, or (D) exercising statutory dissenter’s, appraisal, or similar rights under the MBCA; provided, further, that the foregoing shall also not prevent the Purchasers 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 in this Section 5.9(a)(xiv);
(xv) disclose publicly or privately in a manner that could reasonably be expected to become public any intent, purpose, plan, or proposal with respect to the Company’s 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;
(fxvi) and enter into any negotiations, agreements, or understandings with any person or entity with respect to any of the foregoing, or advise, knowingly assist, knowingly encourage, or knowingly seek to persuade any person or entity 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;
(gxvii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party;
(xviii) take any action challenging the validity or enforceability of any of the provisions of this Section 6 shall not apply 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 activities that were previously expressly prohibited by clause media, or securities analyst) of, any intent, purpose, plan, or proposal to either (A) obtain any waiver or consent under, or any amendment of, any provision of this Agreement, or (B) take any action challenging the validity or enforceability of any provisions of this Section; or
(xix) otherwise take, or solicit, cause or encourage others to take, any action inconsistent with the foregoing.
(b) Notwithstanding the foregoing, the provisions of this Section 6 shall not limit in any respect the actions of any director or executive officer of the Company (including E▇▇▇ ▇▇▇▇, M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) in his or her capacity as such, recognizing that such actions are subject to such director’s and officer’s fiduciary duties to the Company and its shareholders (it being understood and agreed that neither the Purchasers nor any of their Affiliates or Associates shall seek to do indirectly through the E▇▇▇ ▇▇▇▇, M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in their capacity as directors or officers anything that would be prohibited if done by any of the Purchasers or their Affiliates and Associates directly).
(c) The foregoing provisions of this Section shall not be deemed to prohibit the Purchasers or their directors, officers, partners, employees, members, or agents, in each case acting in such capacity (“Purchaser Agents”), from communicating privately regarding or privately advocating for or against any of the matters described in this Section 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 or requests.
(d) As of the date of this Agreement, none of the Purchasers is engaged in any discussions or negotiations with any person, and none of the Purchasers has any agreements, arrangements, or understandings, written or oral, formal or informal, and whether or not legally enforceable, with any person concerning the acquisition of economic ownership of any securities of the Company, and none of the Purchasers has actual and non-public knowledge that any other shareholders of the Company, including any shareholders that have a Schedule 13D currently on file with the SEC with respect to the Company, have any present or future intention of taking any actions that if taken by the Purchasers would violate any of the terms of this Agreement. The Purchasers agree to refrain from taking any actions during the Standstill Period to intentionally encourage other shareholders of the Company or any other persons to engage in any of the actions referred to in the event previous sentence.
(e) As used in this Agreement, the restrictions term “Associate” shall have the meaning set forth in clause Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Securities Exchange Act of 1934; the terms “economic owner” and “economically own” shall have the same meanings as “beneficial owner” and “beneficially own,” except that a person will also be deemed to economically own and to be the economic owner of (bi) are terminated all shares of Common Stock that such person has the right to acquire pursuant to this clause the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (ii) all shares of Common Stock in which such person has any economic interest, including pursuant to a cash-settled call option or other derivative security, contract, or instrument in any way related to the price of shares of Common Stock; 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 any kind or nature; and the term.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (EVINE Live Inc.)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party Purchaser agrees that, for a period of one year from and after the date of this Agreement hereof until the date that is six (or6) months after the Closing Date, such shorter period agreed to it shall not, unless specifically invited in writing by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Company’s Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquireDirectors, directly or indirectly: (i) effect or seek (including, by means of purchasewithout limitation, mergerenter into any discussions, business combination negotiations, agreements or understandings with any Third Party), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other mannerPerson to effect or seek, beneficial ownership offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities of the Company(or beneficial ownership thereof), direct or indirect rights or options to acquire any securities of the Company (including any derivative securities with economic equivalents of or beneficial ownership of any of such securitiesthereof), any right to vote or to direct the voting of any securities of the Company or any assets or businesses, of the Company, (bB) makeany tender or exchange offer, merger, acquisition or other business combination involving the Company, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company, or in any way participate in, directly or indirectly, (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC) or consents consent to vote, or seek to advise or influence any person with respect to the voting of, vote any voting securities of the Company, ; (cii) form, join or in any way participate participating in a “group” (within as defined under the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, ; (diii) otherwise act, alone or in concert with others, to seek to control, advise, change control or influence the management, board Board of directors, governing instruments, Directors or policies or affairs of the Company, (e) make any public disclosure, Company or initiate or take any action that could require to obtain representation on the Board of Directors of the Company; (iv) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any public disclosure, of the types of matters set forth in (i) through (iii) above; or (v) enter into any discussions or arrangements with any Third Party with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party Purchaser also agrees during such period that it shall not to request request, directly or indirectly, any amendment or waiver of any provision of this Section 6.1 (including this sentence) by the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))representatives.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vanda Pharmaceuticals Inc.)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees You agree that, for a period of one year from during the date of this Agreement Standstill Period (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”as defined below), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (you and shall cause its affiliates not to and shall cause its and their respective your Representatives acting at its and their respective on your behalf not to): (a) in any manner acting alone or in concert with othersyou, acquireshall not, agree to acquire or make any proposal to acquirewithout the prior written consent of the Company’s board of directors, directly or indirectly: (a) acquire, offer to acquire, or agree to acquire, by means of purchasepurchase or otherwise, mergerany equity securities or assets, business combination or rights or options to acquire interests in any other manner, beneficial ownership of any securities of the Company, direct ’s equity securities or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Companyassets, (b) make, or in any way participate inparticipate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to votesecurities of the Company, or seek to advise or influence any person or entity with respect to the voting of, any voting of any securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) , with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) make any public announcement with respect to or make or submit a proposal or offer (with or without conditions) for the securities or assets of the Company or any merger, tender offer, business combination, exchange offer, restructuring, recapitalization or liquidation involving the Company or any of its subsidiaries (each, an “Extraordinary Transaction”), (e) submit or effect any filing or application, or seek to obtain any permit, consent or agreement, approval or other action, required by or from any regulatory agency with respect to an acquisition of the Company or any of its equity securities or assets or an Extraordinary Transaction, (f) call or seek to have called any meeting of the stockholders of the Company, (g) otherwise act, act alone or in concert with others, others to seek to control, advise, change or influence control the management, board of directors, governing instruments, directors or policies or affairs of the Company, seek to place a representative on the board of directors or seek the removal of any member of the board of directors, (eh) make require any public disclosurewaiver, modification, termination or take any action that could require the Company to make any public disclosure, with respect to amendment of this Section 12 except as provided hereby or (i) propose any of the matters set forth in this Agreement, other than foregoing unless and until such proposal is specifically invited by the required amendment to the Receiving Party’s Schedule 13D filing as a result board of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any directors of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence)in writing. Notwithstanding any provision in this Agreement to The “Standstill Period” means the contrary, (i) the Standstill Period shall terminate immediately if, after period beginning on the date of this AgreementAgreement and terminating upon the earlier to occur of (i) eighteen months from the date hereof, (Aii) the announcement or consummation of a transaction involving the Company, or (iii) the date on which the Company becomes insolvent or the subject of a bankruptcy or insolvency proceeding; provided, however, that if the Company enters into a definitive confidentiality or other agreement with a third party to effectuate a sale another party, and such agreement contains provisions less restrictive than those set forth in this Paragraph 12, whether in terms of 50% length of Standstill Period, scope or more of the consolidated assets of otherwise, then the Company or 50% or more will promptly notify you in writing of the Company’s outstanding equity securitiessuch less restrictive terms, (B) the Company publicly announces the conclusion and you shall be bound only by such less restrictive terms. Nothing in this Agreement shall prohibit you from exercising any of its previously announced strategic review process without a definitive your rights under any Versa Capital Management, LLC January 7, 2014 agreement to sell the Company, which you are or become a party. You further acknowledge and agree that you are aware (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) that your Representatives who are apprised of this Section 6 shall terminate ten days prior to matter have been or will be advised) that the expiration United States securities laws may prohibit any person who has material non-public information about a company from purchasing or selling securities of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))company.
Appears in 1 contract
Sources: Confidentiality Agreement (Everest Merger Sub, Inc.)
Standstill Agreement. In consideration (a) During the Non-Compete Period, the Executive agrees that he will vote all shares directly or indirectly beneficially owned by him for the election of the Confidential Information being furnished slate of nominees for election to the Receiving Party pursuant Board of Directors of the Company selected by a majority of the members of the Board of Directors, and for the approval of all matters recommended by a majority of the members of the Company's Board of Directors, if any recommendation is made.
(b) The Executive shall be present in person or by proxy at any meeting of Stockholders so that all shares of Common Stock owned by the Executive may be counted for the purposes of determining the presence of a quorum at such meeting.
(c) The Executive further agrees that he will not join in any group or contest to this Agreement, acquire the Receiving Party Company's shares during the Non-Compete Period.
(d) The Executive agrees that, that for a period commencing on the Effective Date through the end of one year the Non-Compete Period, except within the terms of a specific request from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible TransactionCompany, the “Standstill Period”)Executive may not as a principal, unless expressly requested by the Company or its Board agent of Directors (another person, propose or any committee thereof) in writingpublicly announce or otherwise disclose an intent to propose, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, enter into or agree to acquire enter into, singly or make with any proposal to acquire, other person or directly or indirectly, by means (i) any form of purchasebusiness combination, mergeracquisition, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights transaction relating to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Companymajority-owned affiliate thereof, (bii) any form of restructuring, recapitalization or similar transaction with respect to the Company or any such affiliate, or (iii) any demand, request or proposal to amend, waive or terminate any provision of this Section 12(d) of this Agreement, nor except as aforesaid during such period will the Executive, as a principal, or agent of another person, (1) make, or in any way participate in, directly or indirectly, any “solicitation” solicitation of “proxies” (as such terms are used proxies with respect to any securities entitled to vote generally in the proxy rules election of directors of the Securities and Exchange Commission) Company (together with direct or consents indirect options or other rights to voteacquire any such securities, or "Voting Securities"), (including by the execution of action by written consent), become a participant in any election contest with respect to the Company, seek to advise or influence any person with respect to the voting of, any voting securities Voting Securities or demand a copy of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion 's list of its previously announced strategic review process without a definitive agreement to sell the Companyshareholders or other books and records, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application participate in or proceeding is not dismissed within 30 days and (ii) encourage the Standstill Period solely with respect formation of any partnership, syndicate, or other group which owns or seeks or offers to clause (b) acquire beneficial ownership of this Section 6 shall terminate ten days prior any Voting Securities or which seeks to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).affect control
Appears in 1 contract
Standstill Agreement. In consideration The Stockholders covenant and agree that, without the prior written consent of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writingof the Company and other than with respect to the conversion of the Preferred Stock, the Receiving Party Stockholders shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): not, directly or indirectly, alone or through or with others: (a) in any manner acting alone or in concert with others, acquire, offer to acquire, or agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchasepurchase or otherwise, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, or direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities)Company, any right to vote or to direct the voting of any securities of the Company or any assets successor to or person in control of the Company, or any subsidiary or division thereof or of any such successor or controlling person; (b) make, or in any way participate inparticipate, directly or indirectly, in any “"solicitation” " of “"proxies” " to vote (as such terms are used in the proxy rules of the U.S. Securities and Exchange Commission) or consents to voteCommission ("SEC")), or seek to advise or influence any person or entity with respect to the voting of, of any voting securities of the Company, or seek to influence or control the policies or management of the Company or any subsidiary or a division thereof; (c) make any public announcement with respect to a proposal for, or submit an offer of (with or without conditions), any extraordinary transaction involving the Company, any of its subsidiaries or divisions or of any of their respective securities or assets; (d) form, join or in any way participate in a “"group” (within the meaning of " as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Companyamended ("Exchange Act"), other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to ; (e) publicly request the Company or any of the Company its Representatives, directly or indirectlydirectly, to amend or waive any provision of this Section 6 paragraph; or (including this sentence). Notwithstanding f) enter into any provision in this Agreement to the contrarydiscussions, (i) the Standstill Period shall terminate immediately ifnegotiations, after the date of this Agreement, (A) the Company enters into a definitive agreement arrangements or understandings with a any third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) any of the foregoing. The references in this Section 6 shall terminate ten days prior paragraph to the expiration rules of the applicable time period SEC and the Exchange Act shall apply for stockholders to nominate directors for election at all purposes under this Agreement whether or not the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Company has registered a class of securities under Section 8 hereof (and, for 12 of the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))Exchange Act.
Appears in 1 contract
Standstill Agreement. In consideration During the Restricted Period, each Seller Party (on behalf of the Confidential Information being furnished to the Receiving Party pursuant to this Agreementitself and each of its Affiliates) agrees that it shall not, the Receiving Party agrees thatdirectly or indirectly, for a period of one year from the date of this Agreement (orthrough its Affiliates or otherwise, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf such Seller Party’s Restricted Persons not to): , without the prior written consent of the Board, in any manner:
(a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal or offer to acquireacquire any shares of Common Stock or securities that are convertible or exchangeable into (or exercisable for) shares of Common Stock, directly other than as contemplated by the Purchase Agreement or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership as a result of any securities stock split or stock dividend;
(b) make any proposal or offer to the Board or any of the Company’s stockholders, direct or indirect rights make any public announcement, proposal or offer, with respect to acquire any securities merger, consolidation, business combination, reorganization or similar transaction involving the Company or any subsidiary of the Company (except for the Purchase Agreement and the Transactions); provided that nothing in this Section 2(b) shall prohibit any Seller Party from privately communicating any such proposal or offer to the Company so long as such private communications do not trigger public disclosure obligations of or for any Person (including the filing of a Schedule 13D or Schedule 13G or any derivative securities with economic equivalents of ownership of amendment thereof);
(c) enter into any of such securities)merger, any right to vote consolidation, business combination, reorganization or to direct the voting of any securities of other similar transaction involving the Company or any assets of its subsidiaries (except for the Company, Purchase Agreement and the Transactions) unless such transaction is affirmatively publicly recommended by the Board;
(bd) make, or in any way participate in, directly any statement or indirectlyproposal to the Company or any of the Company’s stockholders or any public announcement, proposal or offer (including any “solicitation” of “proxies” (as such terms are used in Regulation 14A promulgated under the proxy rules of the Securities and Exchange CommissionAct)) to vote or consents to voteconsent, or seek to advise or influence any person Person with respect to the voting of, or granting of a consent with respect to, any voting securities of or interests in the Company, Company or any of its subsidiaries;
(ce) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any Common Stock other than (i) as contemplated by this Agreement and (ii) forming, joining or in any way participating in a “group” solely between or among any one or more of such Seller Party and such Seller Party’s Affiliates;
(f) enter into, propose or solicit any arrangement or understanding with another Person pursuant to which such Seller Party or any of its Affiliates may vote or consent, or direct or influence the voting securities or failure to vote or consenting or failure to consent, of any security of or interest in the Company not owned of record on the date hereof by any Seller Party, including any voting trust, voting agreement, pooling agreement or similar arrangement, other than (i) this Agreement and (ii) any such arrangement or understanding solely between or among any one or more of such Seller Party and such Seller Party’s Affiliates;
(g) provide, or act as agent for the purpose of obtaining, debt or equity financing for any transaction described in clause (a), (b) or (c) above;
(h) request, call or seek to call a meeting of the stockholders of the Company, other than nominate any group comprised solely individual for election as a director of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence Company at any meeting of the management, board of directors, governing instruments, policies or affairs stockholders of the Company, submit any stockholder proposal (epursuant to Rule 14a-8 promulgated under the Exchange Act or otherwise) to seek representation on the Board or any other proposal to be considered by the stockholders of the Company, or publicly recommend that any other stockholder vote in favor of, or otherwise publicly comment favorably about, or solicit votes or proxies for, any such nomination or proposal submitted by another stockholder of the Company, or otherwise publicly seek to control or influence the Board, management or policies of the Company;
(i) make any public disclosure, request to amend or take any action that could waive the terms of this Agreement if such request would reasonably be respected to require the Company to make any public disclosure, announcement with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, such request;
(fj) publicly disclose any intention, plan or arrangement prohibited by, or inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or any of the foregoing; or
(k) knowingly advise, assist or encourage any other persons in connection with Person to do any of the foregoing. The Receiving Notwithstanding the foregoing, the Parties agree and acknowledge that (i) each Seller Party also agrees during and its Controlled Affiliates may vote their shares of Common Stock at any meeting of holders of Common Stock in their sole discretion, (ii) the limitations set forth in this Section 2 shall in no way limit any communication between or among a Seller Party and its Affiliates or any transferee with respect to any shares of Common Stock transferred to any such period not transferee, (iii) each Seller Party and its Affiliates may coordinate any such vote with, act in concert with, and be part of a group with, any other Affiliate of such Seller Party, and (iv) nothing in this Section 2 shall apply to request potential or actual purchases or sales of oil and/or gas assets or interests between EnCap or any of its Affiliates, on the one hand, and the Company or any of its subsidiaries, on the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))other hand.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Laredo Petroleum, Inc.)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).,
Appears in 1 contract
Sources: Confidentiality Agreement
Standstill Agreement. In consideration of the Confidential Information being furnished Except pursuant to the terms of a Transaction that has previously been authorized by the Disclosing Company, the Receiving Party pursuant to Company agrees that, during the term of this Agreement, neither the Receiving Party agrees that, for a period Company nor any of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): shall, directly or indirectly: (a) in any manner acting alone acquire or in concert with others, acquire, agree offer to acquire or make any proposal agree to acquire, directly or indirectly, by means of purchase, merger, business combination purchase or in any other mannerotherwise, beneficial ownership of any securities of the CompanyDisclosing Company and/or any of its affiliates; (b) "solicit," or participate in the "solicitation" of, direct "proxies" (as such terms are defined or indirect rights used in Rule 14a-1 under the Exchange Act and such terms to acquire any securities have such meanings throughout this Agreement) in opposition to the recommendation of the Company (including any derivative securities with economic equivalents Board of ownership of any of such securities), any right to vote or to direct the voting of any securities Trustees of the Disclosing Company or any assets board of directors, manager or general partner of any Disclosing Company affiliate or become a participant in an election contest with respect to the election of trustees or other similar elected persons of the Company, (b) makeDisclosing Company and/or any of its affiliates, or in otherwise seek to influence or affect the vote of any way participate inequityholder of the Disclosing Company and/or any of its affiliates; (c) enter into, directly or indirectly, any “solicitation” merger, tender or exchange offer, restructuring or business combination involving the Disclosing Company or any of “proxies” its affiliates; (as such terms are used in the proxy rules d) acquire, directly or indirectly, a material portion of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities assets of the CompanyDisclosing Company or any of its affiliates, other than in connection with the Credit Relationship; (ce) form, join or in any way participate in a “group” (within partnership, limited liability company, syndicate or other group or enter into any contract, arrangement, understanding or relationship or otherwise act in concert with any other person for the meaning purpose of Section 13(d)(3) acquiring, holding, voting or disposing of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the CompanyDisclosing Company and/or any of its affiliates; (f) seek to appoint, other than elect or remove any group comprised solely member of the Receiving Party and Board of Trustees of the Disclosing Company and/or any director, manager or general partner of any Disclosing Company affiliate or make any public statements proposing or suggesting any change in the Board of Trustees or management of the Disclosing Company; (g) initiate or propose to the holders of securities of the Disclosing Company and/or any of its affiliates, (d) or otherwise actsolicit their approval of, alone or in concert with others, any proposal to seek to control, advise, change or influence be voted on by the management, board holders of directors, governing instruments, policies or affairs securities of the Company, (e) make any public disclosure, or take any action that could require the Disclosing Company to make any public disclosure, with respect to and/or any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, its affiliates; or (fh) disclose any intention, plan or arrangement inconsistent with to take any of the foregoing or actions enumerated in clauses (a) through (g) have any discussions above or enter into any arrangements (whether written participate in, aid or oral) with, abet or advise, assist otherwise induce or attempt to induce or encourage any other persons in connection with person to take any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions actions enumerated in clauses (c), (d), (e), (fa) and through (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))above.
Appears in 1 contract
Standstill Agreement. In consideration of You hereby further acknowledge that the Confidential Information Evaluation Material is being furnished to the Receiving Party pursuant to this Agreementyou in consideration of your agreement that neither you (including any person or entity directly or indirectly, the Receiving Party agrees thatthrough one or more intermediaries, controlling you or controlled by you or under common control with you) nor any of your Representatives, acting alone or as part of any group, will, for a period of one year two years from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquireletter agreement, directly or indirectly, unless specifically requested to do so in writing in advance by means the Company's Board of purchaseDirectors: acquire or agree, mergeroffer, business combination seek or in any other mannerpropose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any securities of the Company, direct securities or indirect rights to acquire any securities assets of the Company (including any derivative securities with economic equivalents evidence of ownership of any of such securitiesindebtedness), any right to vote or to direct the voting of any securities of the Company or any assets of the Companyrights or options to acquire any such ownership, (b) or make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, vote or seek to advise or influence in any manner whatsoever any person or entity with respect to the voting of, of any voting securities of the Company, (c) or form, join join, or in any way participate in a “"group” " (within the meaning of Section 13(d)(313d(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than or arrange, or in any group comprised solely way participate in, any financing for the purchase of any voting securities or assets or securities convertible or exchangeable into or exercisable for any voting securities or assets of the Receiving Party and its affiliatesCompany, (d) or otherwise act, whether alone or in concert with others, to seek to propose to the Company or any of its stockholders any merger, business combination, restructuring, recapitalization or similar transaction to or with the Company or otherwise act, whether alone or in concert with others, to seek to control, advise, change or influence the management, board Board of directors, governing instruments, Directors or policies or affairs of the Company, (e) make or nominate any public disclosureperson as a Director of the Company who is not nominated by the then incumbent Directors, or take propose any action that could require matter to be voted upon by the stockholders of the Company, or solicit, negotiate with, or provide any information to, any person (other than the Company to make any public disclosure, and its Representatives on a confidential basis regarding a negotiated Proposed Transaction) with respect to a merger, exchange offer or liquidation of the Company or any other acquisition of the Company or any other similar transaction, or announce an intention to, or enter into any discussion, negotiations, arrangements or understandings with any third party with respect to, any of the matters set forth in this Agreementforegoing, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) or disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) withforegoing, or advise, assist or encourage any other persons person in connection with any of the foregoing. The Receiving Party In addition, you also agrees agree during such two-year period not to (i) request the Company (or any of the Company Representatives), directly or indirectly, to amend or waive any provision of this Section 6 paragraph 7 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) take any action that might require the Standstill Period solely Company to make a public announcement regarding a possible transaction (other than, with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii), in connection with any Proposed Transaction).
Appears in 1 contract
Standstill Agreement. In consideration During the Cooperation Period, the Atlas Group shall not, and it will cause each of its controlled Affiliates not to, directly or indirectly (including through any director, officer, employee, partner, member, manager, agent or other representative in each case acting on its behalf (each of the Confidential Information being furnished to foregoing, a “Representative”) of the Receiving Party pursuant to this Agreement, Atlas Group or any Affiliate of the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”Atlas Group), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting manner, alone or in concert with others, others (unless expressly permitted in writing by the Board):
(a) (i) acquire, cause to be acquired, or offer, seek or agree to acquire or make any proposal to acquire, directly whether by purchase, tender or indirectlyexchange offer, through the acquisition of control of another person, by means joining or forming a partnership, limited partnership, syndicate or other group (including any group of purchasepersons that would be treated as a single “person” under Section 13(d) of the Exchange Act), merger, business combination through swap or in any other manner, beneficial ownership hedging transactions or otherwise (the taking of any securities such action, an “Acquisition”), Beneficial Ownership of the Company, direct or indirect rights to acquire any equity securities of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities), (ii) acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase or otherwise, any derivative securities with economic equivalents interest in any indebtedness of the Company, (iii) acquire, cause to be acquired, or offer, seek or agree to acquire, ownership (including Beneficial Ownership) of any asset or business of such securities), the Company or any right or option to vote acquire any such asset or to direct the voting of business from any person, in each case other than (x) securities of the Company or any assets (y) in the ordinary course of the Company’s business, (biv) makeacquire, cause to be acquired, enter into any agreement with respect to or offer, seek or agree to acquire, whether by purchase or otherwise, any Synthetic Position, or (v) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist, facilitate or encourage any other Person to effect or seek, offer or propose to effect or participate in an Extraordinary Transaction; provided that, nothing in this Agreement shall prohibit any member of the Atlas Group from tendering into a tender or exchange offer available to all stockholders or transferring their shares of Common Stock pursuant to any Extraordinary Transaction with any person that is not a member of the Atlas Group;
(b) other than in accordance with this Agreement, (i) nominate, give notice of an intent to nominate, or recommend for nomination a person for election to the Board (other than pursuant to Section 1(c)) or take any action in respect of the removal of any director, (ii) knowingly seek or encourage any person to submit any nomination in furtherance of a “contested solicitation” with respect to, or take any other action in respect of, the election or removal of any director, (iii) submit, or knowingly seek or encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting, (iv) request, or knowingly initiate, encourage or participate in any request, to call a Stockholder Meeting, (v) seek to amend any provision of the Certificate of Incorporation, By-laws or other governing documents of the Company (each as may be amended from time to time) or (vi) take any action prohibited by clause (i) or (ii) with respect to any subsidiary of the Company;
(c) solicit any proxy, consent or other authority to vote of stockholders or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in, directly or indirectlyknowingly assist, advise, initiate, encourage or influence any person (other than the Company) in, any “solicitation” of “proxies” any proxy, consent or other authority to vote any Voting Securities (as other than such terms are used assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter);
(d) (i) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy rules card for any Stockholder Meeting) or (ii) deposit or agree or propose to deposit any securities of the Securities and Exchange Commission) Company in any voting trust or consents to votesimilar arrangement, or seek subject any securities of the Company to advise any agreement or influence any person arrangement with respect to the voting ofof such securities (including a voting agreement or pooling arrangement), in each case other than (A) any such voting securities trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent, or other authority to vote in connection with a solicitation made by or on behalf of the CompanyCompany or (B) customary brokerage accounts, margin accounts and prime brokerage accounts;
(ce) knowingly encourage, advise or influence any person, or knowingly assist any person in so encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) ;
(f) form, join join, knowingly encourage the formation of, or in any way knowingly participate in a “group” any partnership, limited partnership, syndicate or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities Voting Securities (other than a group that includes all or some of the Company, other than any group comprised solely members of the Receiving Party and its affiliatesAtlas Group or any of their Affiliates, (d) otherwise act, alone but does not include any other entities or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs persons that are not members of the CompanyAtlas Group or Affiliates thereof; provided, (e) make any public disclosurehowever, or take any action that could require nothing herein shall limit the Company to make any public disclosure, with respect to any ability of an Affiliate of the matters set forth in this Agreement, other than the required amendment Atlas Group to the Receiving Party’s Schedule 13D filing as a result of join such group following the execution and delivery of this Agreement, (f) disclose so long as any intention, plan or arrangement inconsistent with such Affiliate agrees to be bound by the foregoing or terms and conditions of this Agreement);
(g) have publicly make, publicly advance or publicly disclose any discussions request or enter into any arrangements (whether written or oral) withproposal to amend, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend modify or waive any provision of this Agreement, or take any action challenging the validity or enforceability of any provision of or obligation arising under this Agreement (provided that nothing in this Agreement shall prevent any member of the Atlas Group from taking any action to enforce the provisions of this Agreement or making counterclaims with respect to any action initiated by or on behalf of the Company);
(h) make a request for a list of the Company’s stockholders or for any books and records of the Company whether pursuant to Section 6 220 of the Delaware General Corporation Law or otherwise;
(including i) take any action that would reasonably be expected to require the Atlas Group or the Company to make a public announcement or disclosure regarding the matters set forth in Section 2(a)(v); or
(j) enter into any discussion, negotiation, agreement, arrangement or understanding with any third party (other than another member of the Atlas Group, any Affiliate of the Atlas Group or any of their respective Representatives or any of their respective actual or potential financing sources or advisors as long as it would not reasonably be expected to require the Atlas Group to make a public announcement or disclosure and such activity does not directly or indirectly create any exclusivity, lock-up, dry-up or other similar agreement, arrangement or understanding with any such potential financing source) concerning the matters set forth in Section 2(a)(v) or knowingly encourage, assist, solicit, or seek to cause any person to undertake any action in violation of this sentence)Section 2. Notwithstanding any provision anything in this Agreement to the contrary, the provisions of this Agreement shall not and shall not be deemed to (i) prohibit the Atlas Group or any of its Affiliates or Representatives from communicating privately with the Company’s directors, officers or Representatives, 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) prohibit any New Director, in the exercise of his or her fiduciary duties in good faith and in his or her capacity as a director of the Company, from communicating privately with the Company’s directors, officers or Representatives, 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; (iii) restrict any New Director in the exercise of his or her fiduciary duties in good faith and in his or her capacity a director of the Company; (iv) prevent the Atlas Group or its Affiliates or Representatives from taking any action necessary to comply with or as required by a Legal Requirement, provided that a breach by the Atlas Group of this Agreement is not the cause of the applicable Legal Requirement; or (v) prevent the Atlas Group or any of its Affiliates from, on or prior to the First Trigger Date, making a proposal relating to an Extraordinary Transaction or taking any other action relating thereto or in connection therewith (so long as such other action would not otherwise (x) be prohibited by Section 1(d)(ii) or Sections 2(b)-(h) of this Agreement or (y) be prohibited by Section 2(a)(i)-(iv) except to the extent part of a negotiated Extraordinary Transaction with the Company) if the Company (A) initiates a process to explore an Extraordinary Transaction, or (B) at the direction of or with the permission of the Board or the chair of the Board, engages in or otherwise participates in discussions or negotiations with a third party or its Representatives relating to or that could reasonably be expected to lead to an Extraordinary Transaction having entered into a confidentiality agreement with such third party (and the Company agrees that it shall notify the Atlas Group in writing promptly upon, and in any event within two Business Days of, taking any action described in clause (A) or (B)). The restrictions in this Section 2 shall terminate automatically upon the earliest of (i) the Standstill Period shall terminate immediately ifexpiration of the Cooperation Period; (ii) ten days’ prior written notice delivered by the Atlas Group to the Company following a material breach of this Agreement by the Company (including a failure to appoint or nominate the New Directors or Replacement Directors in accordance with Section 1) if such breach has not been cured within such notice period, after provided that the date Atlas Group is not then in material breach of this Agreement, ; (iii) (A) upon the announcement by the Company enters that it has entered into a definitive agreement with a third party respect to effectuate any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities or a sale of 50% all or more of the consolidated substantially all assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) (x) upon the announcement by the Company publicly announces the conclusion of its previously announced strategic review process without that it has entered into a definitive agreement with respect to sell any Extraordinary Transaction that would not result in the Company, (C) acquisition by any person or group of more than 50% of the Company makes an assignment for the benefit Voting Securities or a sale of creditors all or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law substantially all assets of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (y) the Atlas Group has (1) delivered to each New Director the notice referred to in clause (iv) of each Irrevocable Letter of Resignation and notified the Company indicates its approval thereof, consent thereto or acquiescence therein, or in writing that it has delivered such notices and (2) such petition application or proceeding is not dismissed within 30 days irrevocably waived in writing its rights under Section 1(c)(i); and (iiiv) the Standstill Period solely with respect to clause commencement of any tender or exchange offer (bby a Person other than the Atlas Group or its Affiliates) if (and only if) the Board does not, within ten Business Days of this Section 6 shall terminate ten days prior to such commencement, recommend against acceptance of such tender or exchange offer, and which, if consummated, would constitute an Extraordinary Transaction that would result in the expiration acquisition by any person or group of more than 50% of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))Voting Securities.
Appears in 1 contract
Sources: Cooperation Agreement (Sylvamo Corp)
Standstill Agreement. In consideration of During the Confidential Information being furnished to period commencing with the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date execution of this Agreement (or, such shorter period agreed to by and ending on the Company with a third party who date that is provided access 30 days prior to the Confidential Information director nomination deadline for the purpose Company’s 2021 annual meeting of evaluating a possible Transaction, stockholders (the “Standstill 2021 Annual Meeting”) pursuant to Bylaws (the “Cooperation Period”), unless expressly requested by the Company Protean Group shall not, and it will cause each of its Affiliates not to, directly or its Board indirectly (including through any director, officer, employee, partner, member, manager, consultant, legal or other advisor, agent or other representative (each of Directors (the foregoing, a “Representative”) of the Protean Group or any committee thereof) in writingAffiliate of the Protean Group acting on behalf of the Protean Group or any Affiliate of the Protean Group), the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting manner, alone or in concert with others, :
(a) (i) acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase, merger, tender or exchange offer, through the acquisition of control of another person, by joining or forming a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), ownership (beneficial or otherwise) of any securities or assets of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities) such that after giving effect to any such Acquisition, the Protean Group or make any proposal to acquireof its Affiliates holds, directly or indirectly, in excess of 1.5% of the then outstanding Voting Securities, (ii) acquire, cause to be acquired, or offer, seek or agree to acquire, whether by means purchase or otherwise, any interest in any indebtedness of the Company, (iii) acquire, cause to be acquired, or offer, seek or agree to acquire (whether through equity purchase, mergerasset purchase, business combination merger or in any other mannerotherwise), beneficial ownership (including Beneficial Ownership) of any asset or business of the Company or any right or option to acquire any such asset or business from any person, in each case other than securities of the Company, direct or indirect rights (iv) effect or seek to acquire effect, offer or propose to effect, cause or participate in, or knowingly assist, facilitate, advise or encourage any securities other Person to effect or seek, offer or propose to effect or participate in an Extraordinary Transaction; provided, that nothing in Section 2(a)(iv) shall prohibit any member of the Protean Group from tendering into a tender or exchange offer commenced by a third party who is not a Representative of the Protean Group; provided, further, that nothing in Section 2(a)(iii) or Section 2(a)(iv) shall prohibit any member of the Protean Group from participating as a co-investor in, or consultant with respect to, any offer, proposal or transaction otherwise prohibited by Section 2(a)(iii) or Section 2(a)(iv) so long as (A) such transaction has been approved by the Board or such offer, proposal or transaction is made or entered into, as applicable, in accordance with a process established by the Company (which may include any potential counterparty’s entry into a confidentiality agreement with the Company), (B) neither the counterparty to the Company in such transaction nor its Affiliates is Affiliated with the Protean Group, (C) no member of the Protean Group, directly or indirectly, engages in any discussions or enters into any arrangements, agreements or understandings with the counterparty to the Company or its Affiliates other than to the extent that (x) a member of the Protean Group is initially directly invited or solicited to do so by such counterparty or its Affiliates, (y) such counterparty has been invited or solicited by the Company or its legal or financial advisors to participate in a transaction process established by the Company or (z) such transaction has been presented by such counterparty to the Company, (D) the Protean Group enters into a confidentiality agreement at least as favorable to the Company as the confidentiality agreement entered into by the Company’s counterparty in such transaction, if applicable, and (E) such transaction and such member of the Protean Group’s participation in such transaction does not arise, directly or indirectly, from any breach of this Agreement (including Section 2(f) and Section 2(k)) by any member of the Protean Group.
(b) (i) nominate, give notice of an intent to nominate, or recommend for nomination a person for election to the Board (other than pursuant to Section 1(a)(i)) or take any action in respect of the removal of any director, (ii) knowingly seek or encourage any person to submit any nomination in furtherance of a “contested solicitation” or take any other action in respect of the election or removal of any director, provided, that nothing in this Agreement shall prevent Protean or its Affiliates or Representatives from taking actions in furtherance of identifying director candidates in connection with the 2021 Annual Meeting so long as such actions do not create a public disclosure obligation for Protean or the Company, are not publicly disclosed by Protean or its Affiliates or Representatives and are undertaken on a basis reasonably designed to be confidential, (iii) submit, or knowingly seek or encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting, (iv) request, or knowingly initiate, encourage or participate in any request, to call a Stockholder Meeting, (v) publicly seek to amend any provision of the Charter, Bylaws, or other governing documents of the Company (including any derivative securities with economic equivalents of ownership of any of such securitieseach as may be amended from time to time), any right (vi) seek to vote change or to direct control, or influence control of, the voting of any securities management, the Board, the business, the corporate structure or policies of the Company or (vii) take any assets action similar to the foregoing with respect to any subsidiary of the Company;
(c) solicit any proxy, consent or other authority to vote of stockholders or conduct any other referendum (bbinding or non-binding) make(including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become a “participant” (as such term is defined in any way participate Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in, directly or indirectlyknowingly assist, advise, initiate, encourage or influence any person (other than the Company) in, any “solicitation” of “proxies” any proxy, consent or other authority to vote any Voting Securities (as other than such terms are used assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter);
(i) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy rules card for any Stockholder Meeting or as otherwise permitted by Section 1(c)(ii)) or (ii) deposit or agree or propose to deposit any securities of the Securities and Exchange Commission) Company in any voting trust or consents to votesimilar arrangement, or seek subject any securities of the Company to advise any agreement or influence any person arrangement with respect to the voting ofof such securities (including a voting agreement or pooling arrangement), other than (A) any such voting securities trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent or other authority to vote in connection with a solicitation made by or on behalf of the CompanyCompany or (B) customary brokerage accounts, margin accounts and prime brokerage accounts;
(ce) knowingly encourage, advise or influence any person, or knowingly assist any person in so encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign);
(f) form, join join, knowingly encourage the formation of or in any way participate in a “group” any partnership, limited partnership, syndicate or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities Voting Securities (other than a group that includes all or some of the Company, other than any group comprised solely members of the Receiving Party and its affiliatesProtean Group, (d) otherwise act, alone but does not include any other entities or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs persons that are not members of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any Protean Group as of the matters set forth in this Agreementdate hereof; provided, other than that nothing herein shall limit the required amendment to the Receiving Party’s Schedule 13D filing as a result ability of an Affiliate of the Protean Group to join such group following the execution and delivery of this Agreement, (f) disclose so long as any intention, plan or arrangement inconsistent with such Affiliate agrees to be bound by the foregoing or terms and conditions of this Agreement);
(g) have make or publicly advance any discussions request or enter into submit any arrangements (whether written or oral) withproposal to amend, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend modify or waive any provision of this Section 6 (including this sentence). Notwithstanding Agreement, or take any action challenging the validity or enforceability of any provision in of or obligation arising under this Agreement Agreement; provided, that the Protean Group may make private requests to the contraryBoard to amend, (i) the Standstill Period shall terminate immediately if, after the date modify or waive any provision of this Agreement, which the Board may accept or reject in its sole and absolute discretion, so long as any such request is not publicly disclosed by the Protean Group and is made by the Protean Group in a manner that could not reasonably be expected to require, and that does not require, the public disclosure thereof by the Company, the Protean Group or any other person;
(Ai) the Company enters into make a definitive agreement with request for a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more list of the Company’s outstanding equity securities, (B) stockholders or for any books and records of the Company publicly announces whether pursuant to Section 220 of the conclusion General Corporation Law of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit State of creditors Delaware or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution otherwise or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect engage any private investigations firm or other person to clause (b) investigate any of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting directors or officers;
(i) make any public proposal with respect to, any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company;
(j) take any action that could reasonably be expected to be scheduled in accordance with Section 8 hereof (and, for require the avoidance of doubtProtean Group, the restrictions Company or any of its subsidiaries or any other person to make a public announcement or disclosure regarding this Agreement (other than the Press Release) or any matter addressed in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply 2; or
(k) enter into any discussion, negotiation, agreement, arrangement or understanding concerning any of the foregoing (other than this Agreement) or knowingly assist, encourage, solicit, seek or seek to the activities that were previously expressly prohibited by clause (b) of cause any person to undertake any action inconsistent with this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))2.
Appears in 1 contract
Sources: Cooperation Agreement (Tenneco Inc)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in From and after the Closing Date until the second anniversary thereof, except with the prior consent of the Buyer Board, the Stockholder shall not, and shall not permit any manner acting alone entity owned or in concert with otherscontrolled directly or indirectly by him, to: (i) directly or indirectly acquire, agree announce its intention to acquire or acquire, make any proposal to acquire, directly agree or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial offer to acquire ownership of any shares of Buyer Common Stock, or any other securities of the Companyconvertible into, direct or indirect any options, warrants or rights to acquire any securities shares of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company Buyer Common Stock or any assets of Buyer (other than property acquired in the Company, ordinary course of business) from the Buyer or any other person or entity; (bii) make, “solicit” or propose to “solicit” or participate in any way participate in, directly or indirectly, any “solicitation” of any, “proxiesproxy” (as such terms are used term is defined in Regulation 14A under the proxy rules Exchange Act) from any holder of shares of Buyer Common Stock, become a “participant” in a “solicitation” in opposition to any matter that has been recommended by a majority of the Securities and Exchange Commission) members of the Buyer Board, propose or consents to voteotherwise solicit stockholders of Buyer for approval of any stockholder proposal, or otherwise seek to advise influence or influence control the management or policies of Buyer in his capacity as a stockholder of the Buyer; (iii) nominate for election as a director of the Buyer, or vote his Buyer Shares for election as a director of the Buyer, any person with respect to who is not nominated by the voting of, any voting securities then incumbent directors of the Company, Buyer; (civ) vote his Buyer Shares against any proposal or matter recommended by a majority of the members of the Buyer Board for approval by the stockholders of the Buyer; (v) take any action to form, join in or in any way participate in a “group” any partnership, limited partnership or other Group (within as such term is defined under the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities shares of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing Buyer Common Stock; or (gvi) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage announce his intention to assist any other persons person or entity in connection with doing any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause .
(b) The provisions of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f8.5(a) and (g) of this Section 6 shall not apply to any actions, determinations or decisions taken or made by the activities that were previously expressly prohibited by clause (b) Stockholder, in his capacity as a director of the Buyer and shall terminate upon the consummation of a Change in Control of the Buyer. Nothing contained in this Section 6 8.5 shall restrict or impede the Stockholder’s ability in carrying out his duties and obligations as a director of the event the restrictions in clause (b) are terminated pursuant to this clause (ii))Buyer.
Appears in 1 contract
Standstill Agreement. In consideration (a) Paragraph (b) hereof shall replace, amend and restate in its entirety the 10th paragraph of the Confidential Information being furnished to Confidentiality Letter Agreement dated April 16, 2008 between the Receiving Party pursuant to Company and Arrow Capital Management LLC (the "NDA").
(b) Purchasers agree that except for the transactions contemplated by this Agreement, Agreement until the Receiving Party agrees that, for a period earlier of (i) the expiration of one year from the Closing Date, or (ii) the date on which the Company publicly announces a significant corporate transaction requiring approval of this Agreement (orthe Shareholders and involving a material acquisition, such shorter period agreed to disposition, amalgamation, merger or consolidation or any other similar extraordinary corporate transaction including, without limitation, the issuance of equity or debt securities by the Company with a third party who is provided access to that requires the Confidential Information for the purpose approval of evaluating a possible TransactionShareholders, the “Standstill Period”)neither they nor any of their affiliates, unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writingincluding Arrow Capital, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): will (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities property of the Company or any assets of its subsidiaries, (b) except at the specific written request of the Company, propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (bc) make, or in any way participate in, directly or indirectly, any “`solicitation” ' of “`proxies” ' (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the CompanyCompany or any of its subsidiaries, (cd) form, join or in any way participate in a “`group” ' (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than Company or any group comprised solely of the Receiving Party and its affiliatessubsidiaries, (de) otherwise act, alone or in concert with others, to seek to control, advise, change control or influence the management, board Board of directors, governing instruments, Directors or policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or foregoing, (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing, or (h) request any waiver of the provisions of this Section 6.6(b). The Receiving Party Purchasers and Arrow Capital also agrees agree during such period not to request take any action which might require the Company to make a public announcement regarding the possibility of a business combination or merger; provided that notwithstanding the foregoing in addition to the Transactions, Purchasers and Arrow Capital may purchase additional outstanding Common Shares in open market purchases in compliance with all applicable laws and regulations and, if applicable, the Company's insider trading policies commencing more than 30 days after the Clo▇▇▇▇ ▇▇▇▇, ▇▇▇▇ided that Purchasers and Arrow Capital together with their affiliates shall not at any time collectively own more than 45% of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))Common Shares.
Appears in 1 contract
Standstill Agreement. In consideration During the twelve (12) month period commencing on the Effective Date (the "Standstill Period"), Company and its subsidiaries and Affiliates will not, in any manner, directly or indirectly, except as agreed to in a definitive agreement or with the prior written consent of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for Adolor Board of Directors in connection with a period of one year from the date of this Agreement (or, such shorter period possible transaction or otherwise as agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): Adolor:
(a) in any manner acting alone or in concert with othersmanner, acquiremake, effect, initiate, cause, propose, agree to acquire or make participate in (i) any proposal to acquire, directly or indirectly, by means acquisition of purchase, merger, business combination or in any other manner, beneficial ownership of any voting securities of the Company, direct Adolor or indirect rights to acquire any securities its subsidiaries or Affiliates that exceeds 2% of the Company total outstanding number of such securities, (including ii) any derivative securities with economic equivalents of ownership acquisition of any of such securities)the assets of Adolor or any subsidiary or other Affiliate of Adolor representing more than 50% of the market capitalization of Adolor and any of its subsidiaries and Affiliates, (iii) any right to vote tender offer, exchange offer, merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, extraordinary transaction, or to direct other similar transaction involving Adolor or any subsidiary or other Affiliate of Adolor representing more than 50% of the voting market capitalization of Adolor and any of its subsidiaries and Affiliates, or involving any securities or assets of the Company Adolor or any assets subsidiary or other Affiliate of the Company, (b) makeAdolor, or in (iv) any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person Person (defined below) with respect to the voting ofto, any voting securities of Adolor; the Companyterm "Person," as used in this Section 13, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority;
(cb) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder) with respect to the beneficial ownership of any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, Adolor;
(dc) otherwise act, alone or in concert with others, to seek to control, advise, change control or influence the management, board Board of directors, governing instruments, Directors or policies of Adolor or affairs to contact any non-executive member of the Company, Board of Directors of Adolor;
(ed) make any public disclosure, or take any action that could is reasonably likely or intended to require the Company either Party to make any a public disclosure, with respect to announcement regarding any of the types of matters set forth in clause "(a)" of this AgreementSection 13;
(e) agree or offer to take, or encourage or propose to any Person other than Adolor (publicly or otherwise) the required amendment taking of, any action referred to the Receiving Party’s Schedule 13D filing as in a result of the execution and delivery clause "(a)", "(b)", "(c)" or "(d)" of this Agreement, Section 13;
(f) disclose any intention, plan or arrangement inconsistent with the foregoing or respect to any transaction prohibited by this Section 13;
(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist assist, induce or encourage any other persons Person to take any action of the type referred to in connection clause "(a)", "(b)", "(c)", "(d)" or "(g)" of this Section 13;
(h) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing. The Receiving Party also agrees during such period not to ; or
(i) request the Company or propose that Adolor or any of the Company Representativesits representatives amend, directly waive or indirectly, to amend consider any amendment or waive waiver of any provision set forth in this Section 13. Notwithstanding the foregoing provisions of this Section 6 13, Company will not be subject to any of the restrictions set forth in this Section 13 if (including this sentencea) an Acquisition Transaction (as defined below) with respect to Adolor shall have been publicly proposed or announced by Adolor or a party unaffiliated with Company (and if rejected or not approved by Adolor, pursued by such party on a unilateral basis, pursuant to a tender or exchange offer and/or a proxy solicitation), (b) Adolor shall have entered into an agreement in principle or definitive agreement providing for an Acquisition Transaction, or (c) Adolor shall have publicly expressed an intention to consider entering into an Acquisition Transaction or shall have commenced a process to seek, or shall have entered into negotiations for, an Acquisition Transaction where such process or negotiations have been publicly disclosed. Notwithstanding any provision anything in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with Adolor agrees that if any Confidential Information is provided to a third party in connection with such third party's evaluation of a possible relationship with Adolor similar to effectuate a sale the Purpose on terms (including, without limitation, regarding the duration of 50% such terms) with respect to the matters described in this Section 13 that are less restrictive to such other party than those contained in this Agreement are to Company (or more on no terms), then the provisions of this Section 13 will be deemed to have been modified or terminated, as appropriate (without any action on Company's part or Adolor's part) to provide Company with the benefit of such less restrictive or no terms. Adolor shall notify the Company as soon as reasonably practicable after the automatic modification or termination of this Section 13 and of the consolidated assets of the Company or 50% or more obligations of the Company’s outstanding equity securities, its subsidiaries and Affiliates under this Section 13 (B) it being understood and agreed that time is of the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or essence in connection with any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (fnotification) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are Adolor will provide Company with an amended Agreement reflecting such less restrictive or terminated pursuant to this clause (ii))terms.
Appears in 1 contract
Sources: Mutual Confidentiality and Non Use Agreement (Adolor Corp)
Standstill Agreement. In consideration of During the Confidential Information being furnished to the Receiving Party pursuant to this AgreementCooperation Period, the Receiving Party agrees thatBandera shall not, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause each of its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf controlled Affiliates not to): , directly or indirectly (aincluding through any director, officer, employee, partner, member, manager, agent or other representative in each case acting on its behalf (each of the foregoing, a “Representative” and more than one, “Representatives”) of Bandera or any controlled Affiliate of Bandera), in any manner acting manner, alone or in concert with others, others (unless expressly permitted in writing by the Board):
(a) (i) acquire, cause to be acquired, or offer, seek or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining or forming a partnership, limited partnership, syndicate or other group (including any group of Persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership of any equity securities of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Securities), such that after giving effect to any such Acquisition, Bandera or make any proposal to acquireof its controlled Affiliates holds, directly or indirectly, in excess of that number of Voting Securities held by means of purchaseBandera and its controlled Affiliates on the Effective Date, merger(ii) acquire, business combination cause to be acquired, or offer, seek or agree to acquire, whether by purchase or otherwise, any interest in any other manner, beneficial ownership of any securities indebtedness of the Company, direct (iii) acquire, cause to be acquired, or indirect rights offer, seek or agree to acquire, ownership (including Beneficial Ownership) of any asset or business of the Company or any right or option to acquire any securities of the Company such asset or business from any Person, in each case other than (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any x) securities of the Company or (y) in the ordinary course of the Company’s business, (iv) offer, seek or agree to acquire, whether by purchase or otherwise, any assets Synthetic Position in any Voting Securities, or (v) effect or seek to effect, offer or propose, or knowingly encourage any other Person to effect or seek to effect, an Extraordinary Transaction; provided, however, that nothing in this Agreement shall prohibit Bandera from (x) tendering into a tender or exchange offer available to all stockholders of the Company or (y) transferring Bandera’s shares of Common Stock pursuant to any Extraordinary Transaction approved by the Board and, if required by applicable law, the stockholders of the Company;
(b) other than in accordance with this Agreement, (i) nominate, give notice of an intent to nominate, or recommend for nomination a natural person for election to the Board or take any action in respect of the removal of any director of the Company, (bii) makeknowingly seek or encourage any Person to submit any nomination in furtherance of a “contested solicitation” with respect to, or take any other action in respect of, the election or removal of any director of the Company, (iii) submit, or knowingly seek or encourage the submission of, any stockholder proposal (pursuant to Rule 14a-8 or otherwise) for consideration at, or bring any other business before, any Stockholder Meeting, (iv) request, or knowingly initiate, encourage or participate in any way participate request, to call a Stockholder Meeting, (v) seek to amend any provision of the certificate of incorporation, bylaws or other governing documents of the Company (each as may be amended from time to time) or (vi) take any action prohibited by clause (i) or (ii) with respect to any subsidiary of the Company; provided, for the avoidance of doubt, that nothing in this Agreement shall prevent Bandera or its controlled Affiliates from taking actions in furtherance of identifying director candidates in connection with the exercise of its rights under Section 1(b) and Section 1(c), so long as such actions do not create a public disclosure obligation for Bandera or the Company and are undertaken on a basis reasonably designed to be confidential;
(c) solicit any proxy, consent or other authority to vote of stockholders or conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in, directly or indirectlyknowingly assist, advise, initiate, encourage or influence any Person (other than the Company) in, any “solicitation” of “proxies” any proxy, consent or other authority to vote any Voting Securities (as other than such terms are used assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter); provided, however, that the proxy rules foregoing shall not restrict Bandera from stating how it intends to vote with respect to an Extraordinary Transaction, if any, in accordance with Section 1(e)(ii) and the reasons therefor;
(d) (i) grant any proxy, consent or other authority to vote with respect to any matters (other than to the Company’s named proxies at any Stockholder Meeting) or (ii) deposit or agree or propose to deposit any securities of the Securities and Exchange Commission) Company in any voting trust or consents to votesimilar arrangement, or seek subject any securities of the Company to advise any agreement or influence any person arrangement with respect to the voting ofof such securities (including a voting agreement or pooling arrangement), in each case, other than (A) any such voting securities trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent, or other authority to vote in connection with a solicitation made by or on behalf of the CompanyCompany or (B) customary brokerage accounts, margin accounts and prime brokerage accounts;
(ce) knowingly encourage, advise or influence any Person, or knowingly assist any Person in so encouraging, advising or influencing any Person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign); provided, however, that the foregoing shall not restrict Bandera from stating how it intends to vote with respect to an Extraordinary Transaction, if any, in accordance with Section 1(e)(ii) and the reasons therefor;
(f) form, join join, knowingly encourage the formation of, or knowingly participate in any way participate in a “group” partnership, limited partnership, syndicate or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, Voting Securities (other than any a group comprised solely of the Receiving Party that includes Bandera and its affiliatescontrolled Affiliates, (d) otherwise act, alone but does not include any other Persons that are not Bandera or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or its controlled Affiliates);
(g) have publicly make, publicly advance or publicly disclose any discussions request or enter into any arrangements (whether written or oral) withproposal to amend, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend modify or waive any provision of this Agreement, or take any action challenging the validity or enforceability of any provision of or obligation arising under this Agreement (provided, however, that Bandera may make confidential requests to the Board (or a duly authorized committee thereof) to amend, modify or waive any provision of this Agreement, so long as any such request is not publicly disclosed by Bandera and is made by Bandera in a manner that could not reasonably be expected to require, and that does not require, the public disclosure thereof by the Company, Bandera or any other Person (it being understood that the Board (or a duly authorized committee thereof) shall have no obligation to grant any such waiver request and may reject such requests in its sole and exclusive discretion); provided, further, that nothing in this Agreement shall prevent Bandera from taking any action to enforce the provisions of this Agreement or making counterclaims with respect to any action initiated by or on behalf of the Company against Bandera;
(h) make a request for a list of the Company’s stockholders or for any books and records of the Company whether pursuant to Section 6 220 of the Delaware General Corporation Law or otherwise;
(including i) take any action that would reasonably be expected to require Bandera or the Company to make a public announcement or disclosure regarding the matters set forth in Section 2(a)(v);
(j) enter into any discussion, negotiation, agreement, arrangement or understanding with any third party (other than the Company, Bandera, any controlled Affiliate of Bandera, any of its Representatives or any of its actual or potential financing sources or advisors as long as it would not reasonably be expected to require Bandera to make a public announcement or disclosure and such activity does not directly or indirectly create any exclusivity, lock-up, dry-up or other similar agreement, arrangement or understanding with any such potential financing source) concerning the matters set forth in Section 2(a)(v); or
(k) knowingly encourage, assist, solicit, or seek to cause any Person to undertake any action in violation of this sentence)Section 2. Notwithstanding any provision anything in this Agreement to the contrary, the provisions of this Agreement shall not and shall not be deemed to (i) prohibit Bandera or any of its controlled Affiliates or Representatives from communicating privately with the Company’s directors, officers or Representatives regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any Person, (ii) prohibit or restrict the New Director, in the exercise of his or her fiduciary duties in good faith, from taking any action in his or her capacity as a director of the Company, (iii) prohibit Bandera or any of its controlled Affiliates or Representatives from communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Agreement, or (iv) prevent Bandera or its controlled Affiliates or Representatives from taking any action necessary to comply with or as required by a Legal Requirement (as defined below), provided, however, that a breach by Bandera or any of its controlled Aff▇▇▇▇▇▇▇ or Representatives of this Agreement is not the cause of the applicable Legal Requirement. The restrictions in this Section 2 shall terminate automatically upon the earliest of: (i) the Standstill Period shall terminate immediately if, after expiration of the date Cooperation Period; (ii) five (5) Business Days’ prior written notice delivered by Bandera to the Company following a material breach of this AgreementAgreement by the Company if such breach has not been cured within such notice period, provided, however, that neither Bandera nor any of its controlled Affiliates or Representatives is then in material breach of this Agreement; (iii) (A) upon the announcement by the Company enters that it has entered into a definitive agreement with a third party respect to effectuate any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities or a sale of 50% all or more of the consolidated substantially all assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) upon the announcement by the Company publicly announces the conclusion of its previously announced strategic review process without that it has entered into a definitive agreement with respect to sell any Extraordinary Transaction that would not result in the Company, (C) acquisition by any person or group of more than 50% of the Company makes an assignment for the benefit Voting Securities or a sale of creditors all or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law substantially all assets of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1iv) the Company indicates commencement of any tender or exchange offer (by a Person other than Bandera or any of its approval thereof, consent thereto controlled Affiliates or acquiescence therein, or Representatives) if (2) such petition application or proceeding is not dismissed within 30 days and (iionly if) the Standstill Period solely with respect to clause (b) Board does not, within ten Business Days of this Section 6 shall terminate ten days prior to such commencement, recommend against acceptance of such tender or exchange offer, and which such tender or exchange offer, if consummated, would constitute an Extraordinary Transaction that would result in the expiration acquisition by any person or group of more than 50% of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii))Voting Securities.
Appears in 1 contract
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting For so long as the Class A Shares are held by Seaside or its affiliates, Seaside will not, alone or in concert with others, directly or indirectly: (i) by purchase or otherwise, acquire, or agree to acquire or make any proposal to acquire, directly or indirectlyownership (including, by means of purchase, merger, business combination or in any other mannerbut not limited to, beneficial ownership ownership) of any securities of the Company, Class A Shares or direct or indirect rights (including convertible securities) or options to acquire such ownership; (ii) make any securities public announcement with respect to, or submit any proposal for, the acquisition of the Company (including any derivative securities with economic equivalents of beneficial ownership of Class A Shares (or direct or indirect rights, including convertible securities, or options to acquire such beneficial ownership) for or with respect to any extraordinary transaction or merger, consolidation, sale of such securities), any right to vote substantial assets or to direct the voting of any securities of business combination involving the Company or any assets of its affiliates, whether or not any parties other than Seaside or its affiliates and associates are involved and whether or not such proposal might require the Company, making of a public announcement; (biii) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are defined or used in Regulation 14A under the proxy rules of the Securities and Exchange CommissionAct) or consents become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company or any of its affiliates; provided, however, that the foregoing shall not restrict any actions with respect to matters (other than matters relating to the election of directors or the composition of the Company, 's Board of Directors) submitted to a shareholder vote which matters are not proposed or initiated by Seaside or its affiliates or associates or by any person acting in concert with or at the direction of Seaside or its affiliates or associates; (civ) form, join or in any way participate in a “"group” " (within the meaning of as such term is used in Section 13(d)(313d(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any action or matter otherwise prohibited by the terms of the foregoing. The Receiving Party also agrees during such period not this agreement; (v) initiate or propose any shareholder proposals for submission to request a vote of shareholders with respect to the Company or any of the Company Representatives, directly its affiliates or indirectly, to amend or waive propose any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement person for election to the contrary, (i) the Standstill Period shall terminate immediately if, after the date Board of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets Directors of the Company or 50% any of its affiliates; or more (vi) otherwise seek to control the management or policies of the Company’s outstanding equity securitiesCompany or any of its affiliates, (B) including, without limitation, taking any action to seek to obtain representation on the Board of Directors of the Company publicly announces the conclusion or any of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause affiliates.
(b) of this Section 6 shall terminate ten days prior to So long as the expiration of Class A Shares are held by Seaside or its affiliates, Seaside and its affiliates will vote the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated Class A Shares delivered pursuant to this clause Agreement in support of the election of the nominees to the Company's Board of Directors proposed by either the current Board of Directors or the members of the Board of Directors who have been nominated to the Board by the current Board of Directors (ii)or such of their successors who have been nominated by the Board members so nominated).
Appears in 1 contract
Sources: Conversion Agreement (Interiors Inc)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone Except as specifically permitted or in concert with othersrequired by this Restricted Stock Unit Award, acquire, agree to acquire or make any proposal to acquirethe Grantee will not, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities without the prior approval of the Company’s board of directors (the “Company Board”),
(i) acquire (or offer, direct propose or indirect rights agree to acquire acquire) any securities shares of common stock of the Company (“Common Stock”) by any means whatsoever (including pursuant to this Restrcited Stock Unit Award) if the total number of shares of Common Stock then beneficially owned by the Grantee and its Affiliates and any derivative securities with economic equivalents of other persons whose beneficial ownership of any Common Stock would be aggregated with the Grantee’s for purposes of such securities), any right to vote or to direct the voting of any securities Section 13(d) of the Company or any assets Exchange Act, does not exceed 4.999% of the Companytotal number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon any conversion or exercise of another security including a warrant). For these purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder;
(bii) makeengage, or become a participant, in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A under the proxy rules of the Securities and Exchange CommissionAct) or consents to votevote any shares of Common Stock;
(iii) grant a proxy or otherwise transfer the right to vote any shares of Common Stock, other than to the Company’s designee(s) pursuant to a proxy solicitation conducted by or on behalf of the Company Board;
(iv) act or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change control or influence the management, board of directors, governing instruments, the Company Board or policies or affairs of the Company (including by seeking to call a shareholders meeting, proposing or nominating any person for election to the Company’s Board, (e) make any public disclosuresubmitting a proposal for action at a shareholders meeting or by consent of the shareholders in lieu of a meeting, proposing a merger, statutory share exchange or other business combination or extraordinary corporate transaction, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, otherwise);
(fv) publicly disclose any intention, plan or arrangement inconsistent with the foregoing or foregoing; or
(gvi) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not foregoing or to request the Company or do any of the Company Representatives, directly or indirectly, to amend or waive any provision foregoing.
(b) The obligations of the Grantee under this Section 6 (including this sentence). Notwithstanding any provision shall terminate in this Agreement to the contrary, event (i) any bona fide third party tender or exchange offer is publicly announced and commenced by any person other than the Standstill Period shall terminate immediately ifGrantee or an affiliate of the Grantee and any other persons whose beneficial ownership of Common Stock would be aggregated with the Grantee’s for purposes of Section 13(d) of the Exchange Act for at least 50% of the outstanding shares of Common Stock that is conditioned upon the offeror receiving tenders for at least 50% of the outstanding shares of Common Stock, after the date of this Agreement, or (Aii) the Company enters into any agreement to merge or enter into a definitive agreement statutory share exchange with a third party any person other than the Grantee or an affiliate of the Grantee or any other persons whose beneficial ownership of Common Stock would be aggregated with the Grantee’s for purposes of Section 13(d) of the Exchange Act following the closing of which the Common Stock would cease to effectuate a sale be registered under the Exchange Act. All of the provisions of this Section shall be reinstated and shall apply in full force according to their terms in the event that: (A) if the provisions of Section 16(a) shall have terminated as the result of clause (i), and such tender or exchange offer (as originally made or as amended or modified) shall have terminated without acquisition by the offeror of at least 50% or more of the consolidated assets outstanding shares of the Company Common Stock; or 50% or more of the Company’s outstanding equity securities, (B) if the Company publicly announces the conclusion provisions of its previously announced strategic review process without Section 16(a) shall have terminated as a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit result of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii), such merger or share exchange agreement shall have been terminated prior to its closing. Upon reinstatement of the provisions of Section 16(a), the provisions of this Section 16(b) shall continue to govern in the event that any of the events described in this Section 16(b) shall subsequently occur.
Appears in 1 contract
Sources: Restricted Stock Unit Award Agreement (EVINE Live Inc.)
Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party Each Stockholder agrees that, for a the period of one year from beginning on the date of this Agreement and ending at the close of business on the two (or2) year anniversary of the date of this Agreement, unless such shorter period agreed to Stockholder shall have been specifically invited in writing by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors of the Company (or any an independent committee thereof) in writing), the Receiving Party shall not (and shall cause neither such Stockholder nor any of its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) Affiliates will in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquiremanner, directly or indirectly, by means (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of purchaseany securities (or beneficial ownership thereof) or assets of the Company; (ii) any tender or exchange offer, merger, consolidation or other business combination or in any other manner, beneficial ownership of any securities of involving the Company; (iii) any recapitalization, direct restructuring, liquidation, dissolution or indirect rights other extraordinary transaction with respect to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets material portion of the Company, 's business; or (biv) make, or in any way participate in, directly or indirectly, any “"solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange CommissionSEC) or consents to vote, or seek to advise or influence any person with respect to the voting of, vote any voting securities of the Company, ; (cb) form, join or in any way participate in a “"group” " (within as defined under the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amendedAct) with respect to any voting the securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, ; (dc) otherwise act, alone or in concert with others, to seek to control, advise, change control or influence the management, board Board of directors, governing instruments, Directors (or any committee thereof) or policies of the Company or affairs propose any matter for submission to a vote of stockholders of the Company, ; (ed) make any public disclosure, or take any action that could require which to the knowledge of such Stockholder requires the Company to make a public announcement regarding any public disclosure, of the types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist assist, encourage, finance or encourage seek to persuade others to take any other persons in connection action with any of respect to the foregoing. The Receiving Party Such Stockholder also agrees during such period not to request the Company (or any of the Company Representativesits directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 6 5 (including this sentence). Notwithstanding any provision in , provided however, that this Agreement to the contrary, (i) the Standstill Period Section 5 shall terminate immediately if, after the date of this Agreement, (A) the Company enters into upon a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more Change in Control of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
Appears in 1 contract