Standstill Provisions. (a) Dolphin agrees that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin will cause each of such Affiliates and Associates not to, directly or indirectly, in any manner: (i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock; (ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; (iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement; (iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement; (v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; (A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company; (vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or (viii) make any request or submit any proposal to waive, terminate or 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.
Appears in 2 contracts
Sources: Board Representation Agreement (Rimage Corp), Board Representation Agreement (Dolphin Limited Partnership Iii, L.P.)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws or (ii) the date that is one hundred (100) days prior to the first anniversary of the 2013 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin direction will, and Dolphin it will cause each of such Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that improperly seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companydirectors;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of business combination involving the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)encourage, offer, propose, initiate or support any other third party in any such related activity or (C) make any public statement communication in opposition to any Company acquisition or disposition activity approved by the Board;
(vi) seek, alone or in concert with respect toothers, or encouragerepresentation on the Board, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change except as specifically contemplated in capital structure, recapitalization, dividend or similar transaction involving the CompanySection 1;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), each member of Starboard shall be entitled to:
(i) vote their shares on any other proposal duly brought before the 2013 Annual Meeting, or otherwise vote as each member of Starboard determines in its sole discretion; or
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefore; provided that, as applicable, all such activity is in compliance with the requirements of this Agreement.
Appears in 2 contracts
Sources: Shareholder Agreement (Starboard Value LP), Agreement (Quantum Corp /De/)
Standstill Provisions. (a) Dolphin agrees that, from During the date period commencing with the execution and delivery of this Agreement until and ending on the earlier of (x) January 25, 2018, and (y) the date that is ten (10) business 30 days prior to the deadline last date for which notice of a stockholder’s intention to nominate any individual as a director of the submission of shareholder nominations for the 2014 Annual Meeting pursuant to Company at the Company’s bylaws 2018 annual meeting of stockholders must be received by the Company (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin will cause each of such Affiliates and Associates not toSRS shall not, directly or indirectly, in any manner:, take any of the following actions (unless specifically permitted to do so in writing in advance by the Board):
(a) acquire, offer to acquire, or cause to be acquired any ownership or other interest in any Voting Securities or any Synthetic Position such that SRS would collectively have Beneficial Ownership of more than 12,000,000 outstanding Voting Securities; provided, that for the avoidance of doubt, nothing contained in this Agreement shall in any way limit the ability of SRS to acquire, offer to acquire or cause to be acquired any ownership or other interest in any Synthetic Position that (i) is not required or permitted to be settled, in whole or in part, in Voting Securities and (ii) does not grant SRS a right, option or obligation to own, acquire or control or direct the voting of any Voting Securities upon Exercise;
(b) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, Voting Securities, or become the beneficial owner, a “participant” (as such term is defined in Rule 13d-3 Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist, advise, knowingly encourage or knowingly influence 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 Voting Securities (other than such advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter);
(c) other than through open market or block trade brokered sale transactions where (x) the identity of the purchaser is unknown to SRS, or (y) SRS does not directly or indirectly select or influence the selection of the purchaser, sell, offer or agree to sell any Voting Securities of the Company to any Third Party that, to the knowledge of SRS after due inquiry, (i) has aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.904.9% of the issued and outstanding Common Stock or (ii) would result in such Third Party having aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 4.9% of the issued and outstanding Common Stock;
(iid) engage effect or seek to effect, offer or propose to effect, cause or participate in, or in any solicitation of proxies way assist, facilitate or consents encourage any other Person to effect or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies seek, offer or consents (including, without limitationpropose to effect or participate in, any solicitation tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of consents that seeks to call a special meeting assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of shareholders its subsidiaries or any of the Company)their respective securities (each, in each case, with respect to the Common Stock, an “Extraordinary Transaction”) other than in accordance with Section 1 of this Agreementan Extraordinary Transaction approved by the Board; provided that nothing in this subsection paragraph (d) shall preclude or prohibit Dolphin SRS (or its Affiliates) from taking any action during (i) tendering into a tender or exchange offer or (ii) making a proposal providing for a Change of Control Transaction (as defined below) directly to the Standstill Period in support of the Dolphin Director (including engaging in Board or a solicitation of proxies for the election of the Dolphin Director) committee thereof and making filings in connection with any special meeting of the Company’s shareholders called by a person such proposal and related discussions or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iii) form, join or in any way participate in any “group” (within the meaning of negotiations under Section 13(d)(313(d) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A Act and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof)related regulations; provided, however, that nothing herein shall limit SRS has provided notice of its intention to make such filing (together with a reasonable description of the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees material items to be bound by disclosed in such filing and, if available, a draft thereof) to the terms and conditions of this AgreementCompany as soon in advance as reasonably practicable;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(ve) (Ai) call or seek the Company or any other Person to call any meeting of stockholders, including by written consent, (ii) seek representation on on, or nominate any candidate to, the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of except as expressly provided by this Agreement), (Biii) otherwise nominate any candidate to the board of directors of any Competitor unless such candidate is independent from SRS and SRS takes all appropriate acts to prevent such third party from providing any competitively sensitive information to SRS, (iv) seek to control or influence the management, removal of any member of the Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(Av) make any proposal for consideration by shareholders at any annual or special meeting of shareholders the Company’s stockholders;
(f) take any public action in support of or make any public proposal or request that constitutes or relates to: (i) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (ii) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, (iii) any other material change in the Company’s management, business or corporate structure, (iv) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any Person, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(g) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(h) except as is reasonably acceptable to the Company, form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act (a “Group”), with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of SRS and its Affiliates);
(i) make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or otherwise;
(j) institute, solicit or join, as a party, any litigation, arbitration or other proceeding (including any derivative action) against the Company or any of its future, current or former directors or officers or employees (provided, that nothing shall prevent SRS from bringing litigation to enforce the provisions of this Agreement or being a party to a class action instituted by a Third Party without the assistance or encouragement of SRS);
(k) except as is reasonably acceptable to the Company, enter into any discussions, negotiations, agreements, or understandings with any Third Party with respect to any of the foregoing, or assist, advise, knowingly encourage or knowingly influence any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(l) (i) contest the validity of, or (ii) publicly request any waiver of, the obligations set forth in this Section 2; provided, that clause (i) shall not be deemed to prevent SRS from defending any claim by the Company that SRS has breached this Section 2. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 2 shall not be deemed to (x) prohibit SRS or its directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors or officers so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure (including under Section 13(d) of the Exchange Act and related regulations) of such communications (except to the extent permitted by Section 2(d)) or (y) restrict any Applicable Director in the exercise of his fiduciary duties to the Company and all of its stockholders. Notwithstanding anything to the contrary in this Agreement, Sections 2(d), (f), (g), (h) and (k) shall be of no further force and effect (and the other subsections of Section 2 shall not be deemed to prohibit actions taken by SRS that otherwise would be prohibited by Sections 2(d), (f), (g), (h) and (k) had they been in effect to the extent such actions are taken in pursuit of a Change of Control Transaction; provided, that for the avoidance of doubt, Section 2(a) shall continue to fully apply in accordance with its terms except for offers (but not acquisitions of Voting Securities) relating to a Change of Control Transaction) in the event that (i) the Company shall enter into a definitive agreement providing for (A) a merger, consolidation, business combination or similar transaction immediately following which the stockholders of the Company immediately prior to the consummation of such transaction (other than stockholders of the Company who have entered into, or who are members of a Group any member of which has entered into, a definitive agreement with the Company in respect of a transaction of the type described in this clause (A)) will hold less than 80% of the total combined voting power of the Company or any successor holding company, (B) a tender or exchange offer for 20% or more of the Voting Securities of the Company, (C) a sale of 20% or more of the consolidated assets of the Company and its subsidiaries (including equity securities of subsidiaries) in a single transaction or series of related transactions (other than in the ordinary course of business), or (D) a sale of 20% or more of the Voting Securities outstanding immediately prior to such sale in a single transaction or series of related transactions (each of (A), (B), (C) and (D) constituting a “Change of Control Transaction”), (ii) the Company formally or publicly commences a process contemplating a Change of Control Transaction and (x) does not provide SRS an opportunity to participate in such a process on the same terms as Third Parties, or (y) includes conditions to participation that are designed to prevent SRS from participating in such a process on the same terms as Third Parties or (iii) a Third Party shall commence a tender offer or exchange offer or otherwise make a bona fide public offer to acquire the Company, all or substantially all of the assets of the Company, or (B) other than at the direction 50% or with the consent more of the Board, in the Dolphin Director’s capacity as a director Voting Securities of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)in each case, offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, not resulting from a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms violation 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 PartySection 2.
Appears in 2 contracts
Sources: Cooperation Agreement (SRS Investment Management, LLC), Cooperation Agreement (Avis Budget Group, Inc.)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2016 Annual Meeting pursuant to the Company’s bylaws or (ii) the date that is one hundred thirty-five (135) days prior to the first anniversary of the 2015 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2016 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Starboard and the Company, or (BC) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition or other than at business combination with respect to the direction Company by such third party prior to such proposal becoming public;
(vi) seek, alone or in concert with the consent of others, representation on the Board, except as specifically contemplated in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), each member of Starboard shall be entitled to:
(i) vote its or his shares on any other proposal duly brought before the 2015 Annual Meeting, or otherwise vote as each member of Starboard determines in its or his sole discretion; or
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor; provided that, as applicable, all such activity is in compliance with the requirements of this Agreement.
(c) The Company agrees that it shall provide Starboard written notice of the date set for the 2016 Annual Meeting at least fifteen (15) business days prior to the date that is one hundred twenty (120) days prior to the 2016 Annual Meeting.
Appears in 2 contracts
Sources: Shareholder Agreement (LSB Industries Inc), Shareholder Agreement (Starboard Value LP)
Standstill Provisions. (a) Dolphin The Stockholder Group agrees that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2015 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates Related Persons (as defined herein) nor any other persons acting under its the control or direction, nor direction of any member of the Affiliates or Associates that control or direct Dolphin Stockholder Group will, and Dolphin it will cause each of its Related Persons and such Affiliates and Associates other persons not to, directly or indirectly, alone or in concert with others, in any mannermanner to:
(i) become the beneficial ownersolicit, as such term is defined encourage or in Rule 13d-3 of the Exchange Actany way engage in any solicitation of, of more than 9.90% of the Common Stock;
(ii) engage any proxies or written consents or conduct any non-binding referendum, or assist or participate in any way, directly or indirectly, in any solicitation of proxies or written consents or otherwise become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(ii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in the Stockholder Group (together with all Affiliates thereof ) owning, controlling or otherwise having any beneficial or other ownership interest in more than 20.0% in the aggregate of the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to be sold to the extent the Stockholder Group exceeds the ownership limit under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial or other ownership interest of the Stockholder Group does not increase thereafter (except solely as a result of further corporate actions taken by the Company), unless and until such ownership interest before and after such subsequent increase does not exceed such 20.0% limitation;
(iii) 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 Stockholder Group to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company, or (D) an Affiliate of a member of the Stockholder Group (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that the Stockholder Group knows would result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 9.9% in the aggregate of the shares of Common Stock outstanding at such time, except in a transaction approved by a majority of the entire Board;
(iv) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(v) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin the Stockholder Group to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivvi) take any action that would be deemed, pursuant to this Agreement, to be Acting in Concert (as defined herein) with another person relating to changing or influencing the control of the Company or in connection with or as a participant in any transaction having that purpose or effect;
(vii) demand a copy of the Company’s list of stockholders or its other books and records, whether pursuant to Section 78.257 of the Nevada General Corporation Law or otherwise;
(viii) commence, encourage, or support any derivative action in the name of the Company, or any class action against the Company or any of its officers or directors;
(ix) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of the Stockholder Group and otherwise in accordance with this Agreement;
(v) (Ax) seek representation on or encourage the Board (other than in accordance with Section 1 removal of this Agreement) any director from the Board, including seeking or encouraging any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal Company; provided, however, that nothing herein will limit the ability of any directors (other than the Stockholder Group to privately recommend to the Board a Replacement Director(s) in accordance with Section 1 1(h);
(xi) take any action in support of this Agreement)or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth herein, (B) otherwise seek to control any material change in the capitalization, stock repurchase programs and practices or influence the management, Board or policies dividend policy of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth other material change in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person management, business or persons 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 than Dolphin for actions that may impede or facilitate the purpose acquisition of removing or electing directors control of the CompanyCompany by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company or (B) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, disposition or other business combination involving the Stockholder Group and the Company, or encourage, initiate or support any other third party in any such related activity or (BC) other than at make any public communication in opposition to any Company acquisition or disposition activity approved by the direction Board;
(xiii) communicate with stockholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act;
(xiv) seek, alone or in concert with the consent of others, representation on the Board, except as specifically contemplated in Section 1;
(xv) otherwise publicly act to seek to influence the Dolphin Director’s capacity as a director management, the Board or policies of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(viixvi) acquire or agree, offer, seek or propose to adviseacquire, encourageor cause to be acquired, support ownership (including beneficial ownership) of any of the assets or influence business of the Company or any person rights or options to acquire any such assets or business from any person;
(xvii) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the voting foregoing, or disposition advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(xviii) take any action challenging the validity or enforceability of any of the provisions of this Section 2 or publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to take any action challenging the validity or enforceability of any provisions of this Section 2; or
(xix) take any action which could cause or require the Company or any Affiliate of the Company at to make a public announcement regarding any annual of the foregoing, publicly seek or special meeting request permission to do any of shareholdersthe foregoing, publicly make any request to amend, waive or terminate any provision of this Section 2 (including, without limitation, this Section 2(a)(xix)), or make or seek permission to make any public announcement with respect to any of the foregoing, except in accordance with Section 1; provided that nothing this Agreement.
(b) Nothing in this subsection Section 2 shall prohibit Dolphin prevent (i) Stockholder Group from freely voting its shares of Common Stock (except as otherwise provided in Section 1 hereto), (ii) Stockholder Group from taking any actions as specifically contemplated in Section 1 in furtherance of reconstituting the Board in a manner consistent with the composition of the Board as set forth in Sections 1(a) and (b), or (iii) ▇▇. ▇▇▇▇, or any Replacement Director, as applicable, from taking any action during the Standstill Period solely in support their capacity as directors of the Dolphin Director (including engaging Company in a solicitation of proxies for the election accordance with their respective fiduciary duties as directors of the Dolphin DirectorCompany (it being understood and agreed that neither the Stockholder Group nor any of its Affiliates shall seek to do indirectly through the Stockholder Group Nominees anything that would be prohibited if done by the Stockholder Group or its Affiliates).
(c) As used in this Agreement, the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; the terms “economic owner” and “economically own” shall have the same meanings as “beneficial owner” and “beneficially ownership,” except that a person will also be deemed to economically own and to be the economic owner of (i) all shares of Common Stock which such person has the right to acquire pursuant to the exercise of any rights in connection with any special meeting 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, without limitation, pursuant to a cash settled call option or other derivative security, contract or instrument in any way related to the Company’s shareholders called by a 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 “Related Person” shall mean, as to any person, any Affiliates or Associates of such person, and any other person with whom such person or persons such person’s Affiliates or Associates is Acting in Concert (as herein defined) or any Affiliate or Associate of such other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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 Partyperson.
Appears in 2 contracts
Sources: Settlement Agreement (IRS Partners No. 19, L.P.), Settlement Agreement (RCM Technologies Inc)
Standstill Provisions. (a) Dolphin agrees The ▇▇▇▇▇▇ Parties agree that, from the date of this Agreement until the earlier of (x) the date that is ten thirty (1030) business calendar days prior to the deadline for the submission of shareholder nominations for the 2014 Company’s 2022 Annual Meeting pursuant to the Company’s bylaws Amended and Restated Bylaws, as amended, or (y) the date that is one hundred twenty (120) calendar days prior to the first anniversary of the 2021 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will▇▇▇▇▇▇ Parties shall not, and Dolphin will shall cause each of such their controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, ▇▇▇▇▇▇ Parties but does not include any other entities or persons that are not identified on Exhibit A ▇▇▇▇▇▇ Parties as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin the ▇▇▇▇▇▇ Parties to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the ▇▇▇▇▇▇ Parties and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than except as specifically permitted in accordance with Section 1 of this Agreement1), (B) otherwise seek in each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent the ▇▇▇▇▇▇ Parties or their Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company’s shareholders called by 2022 Annual Meeting so long as such actions do not create a person or persons other than Dolphin public disclosure obligation for the purpose of removing ▇▇▇▇▇▇ Parties or electing directors of the CompanyCompany and are undertaken on a basis reasonably designed to be confidential;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving the direction ▇▇▇▇▇▇ Parties and the Company, (C) solicit a third party to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases of Common Stock expressly permitted the Company by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any such third party or (E) call or seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with respect toothers, a mergerrepresentation on the Board, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change except as specifically permitted in capital structure, recapitalization, dividend or similar transaction involving the CompanySection 1;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersshareholders with respect to the appointment, election or removal of director(s), except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support ;
(viii) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Dolphin Director (including engaging in Company generally on a solicitation of proxies for the election of the Dolphin Director) in connection pro rata basis, or as awarded or granted to ▇▇. ▇▇▇▇▇▇ with any special meeting respect to his service as a director of the Company’s shareholders called ), directly or indirectly, by a person purchase or persons other than Dolphin for the purpose of removing or electing directors otherwise, any security of the Company, including any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that, inter alia, includes, relates to or derives any significant part of its value from a change in the market price or value of the securities of the Company, which would result in the ▇▇▇▇▇▇ Parties beneficially owning 9.9% or more of the then-outstanding shares of Common Stock in the aggregate;
(ix) except as expressly provided elsewhere in this Agreement, grant any proxy, consent or other authority to vote with respect to any matter (other than to the named proxies included in the Company’s proxy card for an annual meeting or a special meeting); or
(viiix) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), the ▇▇▇▇▇▇ Parties shall be entitled to (i) vote any shares of Common Stock that they beneficially own as the ▇▇▇▇▇▇ Parties determine in their sole discretion and (ii) disclose, publicly or otherwise, how they intend to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor.
(c) Notwithstanding anything in Section 2(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict the ▇▇▇▇▇▇ Parties from (i) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating with shareholders of the Company and others in a manner that does not otherwise violate Section 2(a) or Section 12, or (iii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over the ▇▇▇▇▇▇ Parties.
(d) Nothing in Section 2 or elsewhere in this Agreement shall be deemed to limit the exercise in good faith by any New Director (or a Replacement Director) or existing director of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 2 contracts
Sources: Cooperation Agreement (Radoff Bradley Louis), Cooperation Agreement (Enzo Biochem Inc)
Standstill Provisions. (a) Dolphin Starboard agrees that, that from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 Company’s 2018 annual meeting of stockholders (the “2018 Annual Meeting Meeting”) pursuant to the Company’s bylaws Third Amended and Restated By-laws and (y) the date that is one-hundred and thirty (130) days prior to the first anniversary of the 2017 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and their Affiliates and otherwise in accordance with this Agreement;
(viv) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2018 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of business combination involving the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)encourage, offerinitiate or support any other third party in any such related activity, propose, or (C) make any public statement with respect tocommunication in opposition to any Company acquisition or disposition activity approved by the Board, prior to such activity becoming public, or encourage(D) call or seek the calling of a special meeting of stockholders;
(vi) seek, solicit alone or negotiate in concert with any third party with respect toothers, a mergerrepresentation on the Board, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change except as specifically permitted in capital structure, recapitalization, dividend or similar transaction involving the Companythis Agreement;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in this Agreement, each of Starboard and its Affiliates and Associates under its control shall be entitled to (i) vote its shares on any other proposal duly brought before the 2017 Annual Meeting or otherwise vote as Starboard determines in its sole discretion, (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor (in each case, subject to Section 1(l)(iii)), and (iii) communicate with other companies, including competitors and potential strategic partners of the Company, in the ordinary course of Starboard’s business in connection with Starboard’s research and evaluation of other companies.
(c) To the extent that the Starboard Replacement Director is a principal or employee of Starboard, nothing in this Section 2(a) shall be deemed to limit the exercise in good faith by such Starboard Replacement Director of his or her fiduciary duties solely in his or her capacity as a director of the Company.
(d) Nothing in Section 2(a) shall be deemed to prohibit Starboard and its Affiliates and Associates from communicating privately with the Company’s directors, officers, and advisors so long as such private communications would not be reasonably determined to trigger public disclosure obligations for any Party.
Appears in 2 contracts
Sources: Board Composition Agreement (Starboard Value LP), Board Composition Agreement (Stewart Information Services Corp)
Standstill Provisions. (a) Dolphin FPA agrees that, that from the period from the date of execution of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2020 annual meeting of stockholders of the Company (the “2020 Annual Meeting Meeting”) pursuant to the Company’s bylaws Bylaws and (y) the date that is 100 days prior to the first anniversary of the 2019 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates Affiliates, or Associates under its control or directioncontrol, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such Affiliates its Affiliates, and Associates under its control, not to, directly or indirectly, in any manner, alone or in concert with others:
(i) become purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Common Stock or other securities issued by the beneficial ownerCompany, or any securities convertible into or exchangeable for Common Stock, such that FPA, together with its Affiliates and Associates (as such term is defined in Rule 13d-3 Section 2(a)) would, in the aggregate, beneficially own a number of the Exchange Act, shares in excess of more than 9.9015% of the then outstanding shares of Common StockStock prior to the earlier of (1) the conclusion of the 2018 Annual Meeting and (2) February 28, 2018, and 20% of the then outstanding shares of Common Stock thereafter;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) form, join or in any way participate in a partnership, syndicate or other group, including, without limitation, any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin FPA to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of FPA and otherwise in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than except as provided for in accordance with Section 1 of 1);
(vi) except as otherwise provided for in this Agreement: (A) nominate or publicly recommend for nomination any person for election to the Board of Directors at annual or special meetings of stockholders or otherwise (“Stockholder Meetings”), directly or indirectly, (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make submit any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Companyat, or bring any other business before, Stockholder Meetings, directly or indirectly; (BC) other than at the direction publicly make any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases of Common Stock expressly permitted by Section 2(a)(iany merger, acquisition, amalgamation, recapitalization, restructuring, disposition, distribution, spin-off, asset sale, joint venture or other business combination involving the Company (an “Extraordinary Transaction”), offer, propose, or make any public statement with respect to, or encourage, solicit initiate or negotiate with support any other third party with respect toto any of the foregoing, (D) make any public communication in opposition to any Extraordinary Transaction approved by the Board or (E) call or seek to call a merger, consolidation, acquisition special meeting of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companystockholders;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or2;
(viii) make any request or submit any proposal to waive, terminate or 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;
(ix) disclose any intention, plan or arrangement inconsistent with any provision of this Section 3;
(x) make any public statement other than in support of the recommendations of the Board regarding how FPA intends to vote or instructing other stockholders how to vote;
(xi) make any public disclosure regarding any intent or proposal with respect to the Board, the Company, its management or policies, any of its securities or assets or agreement that is inconsistent with the provisions of this Agreement;
(xii) make a request for the stockholder list or other Company books and records, apart from the information the Company provides to other investors in the normal course; or
(xiii) advise or assist a third party with respect to any of the foregoing. For the avoidance of doubt, other than communications or disclosures expressly prohibited under Sections 3(a) or 6, FPA may engage in non-public communications with the Company regarding general operational and corporate governance matters, which may include referring and recommending additional director candidates to the Board for its consideration. Except as expressly provided in Section 2 or 3, each member of FPA shall be entitled to vote their shares on any other proposal duly brought before the 2017 Annual Meeting, 2018 Annual Meeting or 2019 Annual Meeting or otherwise vote as each member of FPA determines in its sole discretion.
(b) In the event FPA’s beneficial ownership of shares of Common Stock or other securities of the Company, or any securities convertible into or exchangeable for Common Stock, exceeds 15% of the outstanding shares of Common Stock, then FPA will not, and FPA will cause each of its Affiliates, and Associates under its control, not to, directly or indirectly, in any manner, alone or in concert with others, in one transaction or any series of transactions, sell, dispose of, transfer, grant any option or rights with respect to, or otherwise transfer voting or investment power or economic interest with respect to, any Common Stock or any such other securities in a privately negotiated sale, block trade or otherwise to any person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) (other than a “group” consisting solely of some or all of the persons identified on Exhibit A and their Affiliates and Associates, whether now or hereinafter existing) if, as a result of such transaction or transactions, such person or group (to FPA’s actual knowledge, and, with respect to privately negotiated sales or block trades directly with the counterparty, after due inquiry) would beneficially own 5% or more of the Company’s Common Stock as of the close of business on the third day following such purchase (as determined based on the publicly available filings relating to the Company with the SEC); provided, however, that the foregoing shall not apply to (i) unsolicited sales by FPA or its Affiliates or Associates through a broker or financial intermediary on a stock exchange that are not to a specifically identified ultimate purchaser or through so called “dark pools” that are not arranged by FPA or any of its Affiliates or Associates or with FPA’s or its Affiliates’ or Associates’ knowledge or the knowledge of any such broker or financial intermediary of the ultimate purchaser or (ii) participation by FPA or any of its Affiliates or Associates in any tender offer approved by the Board for the Company’s Common Stock or the exchange of its shares for the merger in a merger of the Company.
Appears in 2 contracts
Sources: Shareholder Agreement (First Pacific Advisors, LLC), Shareholder Agreement (Esterline Technologies Corp)
Standstill Provisions. (a) Dolphin Each member of Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2013 Annual Meeting pursuant to the Company’s bylaws or (ii) the date that is one-hundred (100) days prior to the first anniversary of the 2012 Annual Meeting (the “Standstill Period”), ) neither Dolphin, it nor any of its Affiliates or Associates (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended or the rules or regulations thereunder (the “Exchange Act”)) under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin direction will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become alone or with others, control, seek to control or seek representation on the beneficial owner, Board (except as such term is defined specifically contemplated in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common StockSection 1);
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, except in accordance with Section 1;
(iv) seek or encourage any person to submit nominations in furtherance of a “contested solicitation,” or take other applicable action, for the election or removal of directors with respect to the Company;
(A) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, disposition or other business combination involving Starboard and the Company, or encourage, initiate or support any other third party in any such related activity or (C) make any public communication in opposition to any Company acquisition or disposition activity approved by the Board;
(vi) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some lesser number of the persons identified as part of Starboard on Exhibit A and the Board Observerattached hereto, but does not include any other entities or persons members who are not currently identified on Exhibit A as part of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivvii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on solely among the Board (other than in accordance with Section 1 members of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyStarboard; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), each member of Starboard shall be entitled to:
(i) vote their shares on any other proposal duly brought before the 2012 Annual Meeting, or otherwise vote as each member of Starboard determines in its sole discretion; or
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefore; provided that, as applicable, all such activity is in compliance with the requirements of Section 1 and Section 2(a).
Appears in 2 contracts
Sources: Shareholder Agreement (Integrated Device Technology Inc), Shareholder Agreement (Starboard Value LP)
Standstill Provisions. (a) Dolphin Red Alder agrees that, from the date of this Agreement until (x) with respect to each of the following solely as it relates to the election or removal of directors, the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations of director candidates for election to the 2014 Annual Meeting pursuant to Board at the Company’s bylaws 2016 annual meeting of shareholders (including any adjournment or postponement thereof, the “2016 Annual Meeting”) (the “Director Standstill Period”), and (y) with respect to each of the following as it relates to any matter other than the election or removal of directors, the date that is one year after the date of this Agreement (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial ownersolicit, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) make or engage in any solicitation of proxies proxies, or consents or other authority to vote any Common Stock or in any way become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support securities of the Dolphin Director (including engaging Company, except that Red Alder and its Affiliates may engage in a solicitation of proxies for the foregoing in connection with the election of the Dolphin Director) in connection with any special meeting of Shareholder Nominees to the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyBoard;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock or other securities of the Company (other than a the “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereofA); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Red Alder to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement (other than this Agreement) with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreementsolely among Red Alder and its Affiliates;
(viv) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or seek, encourage any person to submit nominations in furtherance of or become a participant in any “contested solicitation” for against the Company, including without limitation relating to the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors of the Company (other than in accordance with Section 1 of this Agreementthe Shareholder Nominees); provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Red Alder and its Affiliates from taking any action during the Standstill Period actions in support furtherance of identifying and/or nominating director candidates a reasonable time in advance of the Dolphin Director 2016 Annual Meeting so long as such actions do not create a public disclosure obligation for Red Alder;
(v) become a participant in any contested solicitation against the Company, including engaging in a solicitation of proxies for without limitation relating to the removal or the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called directors proposed by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(vi) (A) initiate, make any proposal for consideration by shareholders or otherwise solicit shares for approval of a shareholder proposal at any annual or special meeting of shareholders of the Company, or (B) other than at the direction make any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidationacquisition, acquisition of control recapitalization, restructuring, disposition or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction combination involving Red Alder and the Company;
(vii) seek cause to advisebe voted any Common Stock that Red Alder has the right to vote (or direct the vote) in a manner other than in accordance with the recommendation of the Board with respect to (A) the election or removal of directors; and (B) shareholder proposals;
(viii) seek, encouragealone or in concert with others, support representation on the Board, except as specifically contemplated in Section 1;
(ix) seek, alone or influence in concert with others, to increase their aggregate ownership of the Common Stock beyond 20% of all shares outstanding at the time of this Agreement (as adjusted for any stock dividend, stock split, stock combination, reclassification or other similar transaction);
(x) either directly or indirectly for itself or its Affiliates, or in conjunction with any other person or entity in which it proposes to be either a principal, partner or financing source, effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way knowingly support, assist or facilitate any other person to effect or seek, offer or propose to effect, or cause or participate in, (A) any tender offer or exchange offer, merger, acquisition or other business combination involving the Company or any of its subsidiaries or Affiliates; (B) 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 subsidiaries or Affiliates; or (C) any form of restructuring, recapitalization or similar transaction with respect to the voting Company or disposition any of any securities of its subsidiaries or Affiliates; provided, however, the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing restrictions contained in this subsection (x) shall prohibit Dolphin from taking not be applicable to any action during the Standstill Period in support such transaction or process recommended or approved by a majority of the Dolphin Director Board;
(including engaging in a solicitation of proxies for xi) (A) enter into any arrangements, understanding or agreements relating to the election of the Dolphin DirectorCompany (whether written or oral) with, or advise, finance or knowingly assist or encourage, any other person in connection with any special meeting of the Company’s shareholders called by a foregoing, or (B) make any investment in or enter into any arrangement relating to the Company with any other person that Red Alder knows or persons other than Dolphin for the purpose of removing has reason to know engages, or electing directors offers or proposes to engage, in, and which investment or arrangement relates to, any of the Company; orprohibited activities or transactions referenced in the foregoing paragraphs of this Section 2(a);
(viiixii) make any request or submit any proposal to waive, terminate or 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; or
(xiii) take or intentionally cause or actively induce others to take any action directly inconsistent with any of the foregoing.
Appears in 2 contracts
Sources: Agreement (Speed Commerce, Inc.), Agreement (Red Alder GP, LLC)
Standstill Provisions. (a) Dolphin MIG agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 Company’s 2021 annual meeting of stockholders (the “2021 Annual Meeting Meeting”) pursuant to the Company’s bylaws Amended and Restated Bylaws (as may be amended or restated, the “Bylaws”) and (y) the date that is one hundred (100) days prior to the first anniversary of the date on which the Company first mailed its proxy materials or a notice of availability of proxy materials for the 2020 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willMIG shall not, and Dolphin will MIG shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support securities of the Dolphin Director Company or any securities convertible or exchangeable into or exercisable for any such securities (including engaging in a solicitation of proxies for collectively, the election of the Dolphin Director) in connection with any special meeting “securities of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company”);
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any persons who are not Affiliates of MIG with respect to the Common Stock (other than a “group” that includes all or some any securities of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this AgreementCompany;
(iviii) deposit any Common Stock securities of the Company in any voting trust or similar arrangement, or subject any Common Stock securities of the Company to any arrangement or agreement with respect to the voting of any Common Stockthereof, other than any such voting trust, arrangement or agreement solely among the members of MIG and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or encourage or take any other action with respect to the appointment, election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent MIG or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company’s shareholders called by 2021 Annual Meeting so long as such actions do not create a person public disclosure obligation for MIG or persons other than Dolphin for the purpose of removing or electing directors of the CompanyCompany and are undertaken on a basis reasonably designed to be confidential;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company or through any action by written consent of stockholders or referendum of stockholders of the Company, or (B) other than at the direction make any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)any merger, takeover, tender (or exchange) offer, proposeacquisition, recapitalization, restructuring, disposition or other business combination or similar transaction involving the Company and/or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination or similar transaction involving the Company and/or any of its subsidiaries, or make any public statement with respect to, or publicly encourage, solicit initiate or negotiate with support any third party with respect toin making such an offer or proposal, a (D) publicly comment on any third party proposal regarding any merger, consolidationtakeover, acquisition of control tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combinationcombination or similar transaction with respect to the Company and/or any of its subsidiaries prior to such third party proposal becoming public and, thereafter, until the expiration of the Advisor Period, in each case, in accordance with, and subject to, the other provisions of this Agreement, or (E) call or seek to call a special meeting of stockholders or take or seek to take action by written consent of stockholders;
(vi) seek, alone or in concert with others, representation on the Board;
(vii) acquire, offer or propose to acquire, or agree to acquire, whether by purchase, tender or exchange offer, purchasethrough the acquisition of control of another person, sale by joining a partnership, limited partnership, syndicate or transfer other group (including any group of assets persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or securitieshedging transactions or otherwise, dissolutionany securities of the Company or any rights decoupled from the underlying securities of the Company that would result in MIG (together with its Affiliates) owning, liquidationcontrolling or otherwise having any beneficial or other ownership interest in more than 9.9% of the shares of Common Stock outstanding at such time (as adjusted for any stock splits, reorganizationreclassifications, change in capital structurecombinations, recapitalization, dividend stock dividends or similar transaction involving actions by the Company);
(viiviii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking 1(b)(iii);
(ix) enter into any action during the Standstill Period in support discussions, negotiations, agreements or understandings with any third party with respect to any of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companyforegoing; or
(viiix) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), MIG shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as MIG determines in its sole discretion and (ii) subject to Section 12, disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor.
(c) Notwithstanding anything in Section 2(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict MIG from (i) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating with stockholders of the Company and others in a manner that does not otherwise violate Section 2(a) or Section 12, or (iii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over MIG.
Appears in 2 contracts
Sources: Agreement (MIG Capital, LLC), Shareholder Agreement (Groupon, Inc.)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws 12:01 a.m., Eastern time, on March 15, 2017 (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of and any exempt solicitation under Rule 14a-2(b)(1) under the CompanyExchange Act), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A and the Board ObserverB, but does not include any other entities or persons not identified on Exhibit A B as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(viv) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2017 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are not publicly disclosed by Starboard or its representatives or Affiliates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other than at business combination involving Starboard and the direction Company, (C) affirmatively solicit a third party to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases of Common Stock expressly permitted the Company by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with respect toothers, a mergerrepresentation on the Board, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change except as specifically permitted in capital structure, recapitalization, dividend or similar transaction involving the CompanySection 1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by the New Directors of their fiduciary duties solely in his capacity as directors of the Company and in a manner consistent with their and Starboard’s obligations under this Agreement.
Appears in 2 contracts
Sources: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (Depomed Inc)
Standstill Provisions. (a) Dolphin Scopia agrees that, from the date of this Agreement until the earliest of (x) the date that is ten thirty (1030) business calendar days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2019 Annual Meeting pursuant to the Company’s bylaws Amended & Restated Bylaws, (y) the date that is one hundred (100) days prior to the first anniversary of the 2018 Annual Meeting and (z) following the appointment of the initial Scopia Appointee, such time as no Scopia Appointee (or Scopia Replacement Director) is serving on the Board and Scopia has irrevocably notified the Company in writing that it will not seek to fill such vacancy (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willScopia shall not, and Dolphin will shall cause each of such its controlled Affiliates and controlled Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of Common Stock (other than a “group” that includes comprised exclusively of all or some of the entities or persons identified listed on Exhibit A and A, and, for the Board Observeravoidance of doubt, but that does not include any other entities or persons not identified on Exhibit A as of the date hereofpersons); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Scopia to join the “group” with Scopia following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Scopia and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Scopia or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2019 Annual Meeting so long as such actions do not create a public disclosure obligation for Scopia or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Scopia’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company or through any referendum of stockholders, (B) make any offer or proposal (with or without conditions) with respect to any merger, scheme of arrangement, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving Scopia (or its Affiliates) and the Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, scheme of arrangements, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (BD) publicly comment on any third party proposal regarding any merger, scheme of arrangement, takeover offer, acquisition, recapitalization, restructuring, disposition, or other than at business combination with respect to the direction Company by such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of stockholders;
(vi) seek, alone or in concert with the consent of others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), Scopia shall be entitled to (i) vote the shares of Common Stock that it beneficially owns as it determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor (in each case, subject to Section 1(e)(iii)).
(c) Nothing in this Agreement shall be deemed to limit the exercise in good faith by an Appointed Director of such person’s duties solely in such person’s capacity as a director of the Company.
Appears in 2 contracts
Sources: Shareholder Agreement (Forest City Realty Trust, Inc.), Shareholder Agreement (Scopia Capital Management Lp)
Standstill Provisions. (a) Dolphin agrees that, from the date of Unless and until this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting terminated pursuant to Section 6.2, and except (i) pursuant to a negotiated transaction approved by the Company’s bylaws Board; or (ii) as may otherwise be approved by the “Standstill Period”)Board, neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin no Requesting Person will, and Dolphin each Requesting Person will cause each of such their respective Affiliates and Associates not toto not, in any manner, directly or indirectly, in any manner:
(i) become make, effect, initiate, cause or participate in (1) any acquisition of Beneficial Ownership of any securities of the beneficial ownerCompany or any securities of any Subsidiary or other Affiliate or Associate of the Company (except such transfers between Requesting Persons in compliance with Section 2.2), (2) any Company Acquisition Transaction, or (3) any “solicitation” of “proxies” (as such term is those terms are defined in Rule 13d-3 14a-1 of the General Rules and Regulations under the Exchange Act, of more than 9.90% ) or consents with respect to any securities of the Common StockCompany; provided, the parties acknowledge that (x) no Requesting Person nor any of their respective Affiliates and Associates shall be deemed to make, effect, initiate, cause or participate in any acquisition of Beneficial Ownership under subclause (1) of this clause 2.1(i) solely by reason of engaging in any event permitted by Section 2.3; (y) no Requesting Person nor any of their respective Affiliates and Associates shall be deemed to make, effect, initiate, cause or participate in any Company Acquisition Transaction under subclause (2) of this clause 2.1(i) or any solicitation of proxies under subclause (3) of this clause 2.1(i) solely by reason of a Requesting Person or such Requesting Person’s Affiliates and Associates voting its Shares in compliance with Section 3.1(a); and (z) no Requesting Person nor any of their respective Affiliates and Associates shall be deemed to make, effect, initiate, cause or participate in any solicitation of proxies under subclause (3) of this clause 2.1(i) solely by reason of any solicitation of a proxy, agreement or understanding from a Requesting Person or any of such Requesting Persons Affiliates and Associates regarding the voting of the Beneficially Owned Shares in compliance with Sections 3.1(a) and 3.1(b);
(ii) engage in nominate or seek to nominate any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect person to the Common StockBoard or otherwise act, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iii) form, join alone or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) concert with respect others, to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than ; provided that a Requesting Person may seek privately with the Dolphin Director Board or the Company’s Chief Executive Officer to influence the decisions made by the existing management or Board of the Company in his capacity as such, a manner (1) that is not disclosed publicly and (2) that would not force the Company to make a public announcement regarding such attempts to influence the decisions of existing management or the Board.
(Ciii) instigate, support, encourage or assist take any third party action which might force the Company to do make a public announcement regarding any of the actions types of matters set forth in clause (Ai) of this Section 2.1;
(iv) request or propose that the Company (or its directors, officers, employees or agents), directly or indirectly, amend or waive any provision of this Section 2.1, including this subsection 2.1(iv), unless such request or proposal is made privately to the Board in a manner (1) that is not disclosed publicly and (2) that would not force the Company to make a public announcement regarding such request or proposal;
(v) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses (i), (ii), (iii) or (Biv) above; provided that nothing in of this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanySection 2.1;
(Avi) make assist, induce or encourage any proposal for consideration by shareholders at other Person to take any annual or special meeting of shareholders of the Companyaction referred to in clauses (i), (ii), (iii) or (Biv) other than at the direction of this Section 2.1; or
(vii) enter into any discussions or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate arrangements with any third party with respect toto the taking of any action referred to in clauses (i), a merger(ii), consolidation(iii) or (iv) of this Section 2.1.
(b) Notwithstanding the foregoing provisions of Section 2.1(a), the Requesting Persons and their respective Affiliates and Associates may from time to time in one or more transactions acquire Beneficial Ownership of additional shares of Common Stock (“Additional Beneficially Owned Shares”) in excess of the Current Beneficially Owned Shares, provided that (i) the collective Beneficial Ownership of Requesting Persons and their respective Affiliates and Associates does not exceed the Plan Exemption Limit at the time of the acquisition of Beneficial Ownership of Additional Beneficially Owned Shares; (ii) Requesting Persons and their respective Affiliates and Associates are in compliance with all of the provisions of this Agreement as of the acquisition date of any Additional Beneficially Owned Shares; (iii) the representations and warranties of Requesting Persons and their respective Affiliates and Associates in this Agreement shall be true, accurate and complete as if made as of the date of any such acquisition of Additional Shares; (iv) the acquisition of Additional Shares would not result in any Person who is not the Requesting Persons and their respective Affiliates and Associates, individually or collectively, constituting a Section 382 5% Shareholder; and (v) the acquisition of the Additional Beneficially Owned Shares is completed prior to the Additional Beneficially Owned Shares Acquisition Window Expiration Date. Additional Beneficially Owned Shares may not be acquired after the Additional Beneficially Owned Shares Acquisition Window Expiration Date. Any acquisition of additional shares of Common Stock by the Requesting Persons or their respective Affiliates or Associates (i) will not be made with the purpose or the effect of changing or influencing the control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
, and (viiii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) will not be made in connection with (and no Requesting Persons nor any special meeting of their respective Affiliates and Associates will be a participant in) any transaction having such purpose or effect.
(c) The Requesting Persons and their respective Affiliates and Associates shall not be required to divest shares of Common Stock solely as the result of any decrease in the number of issued and outstanding shares of Common Stock (including by reason of any reverse stock split or repurchase and retirement of shares of Common Stock), even if such change causes Requesting Persons and their respective Affiliates and Associates to Beneficially Own shares of Common Stock in excess of the Company’s shareholders called by a person Plan Exemption Limit (either individually or persons other than Dolphin for in the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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 Partyaggregate).
Appears in 2 contracts
Sources: Tax Benefit Preservation Plan Exemption Agreement (Global Value Investment Corp.), Tax Benefit Preservation Plan Exemption Agreement (AutoWeb, Inc.)
Standstill Provisions. (a) Dolphin Each member of Mast Capital agrees that, from the date of this Agreement until the date that is ten earlier of (10i) business days prior to the deadline for the submission conclusion of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws 2013 Annual Meeting or (ii) June 30, 2013 (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended or the rules or regulations thereunder (the “Exchange Act”)) under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin direction will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become the purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial owner, ownership (as such term is defined in determined under Rule 13d-3 of promulgated under the Exchange Act) of any Common Stock or other securities issued by Company, if in any such case, immediately after the taking of such action, Mast Capital would, in the aggregate, collectively beneficially own more than 9.9019.99% of the then outstanding shares of Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at annual meeting of stockholders, except in accordance with Section 1;
(iv) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some lesser number of the persons identified on Exhibit A and the Board Observeras part of Mast Capital, but does not include any other entities or persons members who are not currently identified on Exhibit A as part of Mast Capital as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreementsolely among the members of Mast Capital;
(v) (Avi) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A1) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, Company or (B2) other than at the direction make any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidationacquisition, acquisition of control disposition or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction combination involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of Mast Capital and the Company; or
(viii) make any request seek, alone or submit in concert with others, representation on the Board, except as specifically contemplated in Section 1.
(b) Notwithstanding anything contained herein to the contrary, except as expressly provided herein, each member of Mast Capital shall be entitled to:
(i) vote their shares on any proposal to waive, terminate duly brought before the 2012 Annual Meeting or amend the terms of this Agreement 2013 Annual Meeting (other than through non-public communications the election of directors), or any special meeting of stockholders of the Company, or otherwise vote as each member of Mast Capital determines in its sole discretion;
(ii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by stockholders at the 2014 Annual Meeting;
(iii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company that would not be reasonably determined (other than the election of directors) and the reasons therefor; and
(iv) announce their opposition to trigger public disclosure obligations for any PartyBoard approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of the Company or other business combination involving the Company.
Appears in 2 contracts
Sources: Shareholder Agreement (Lodgenet Interactive Corp), Shareholder Agreement (Mast Capital Management LLC)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) December 31, 2021, and (y) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations for the 2014 2022 Annual Meeting pursuant to the Company’s bylaws Amended and Restated Bylaws (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2022 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving the direction Company or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the consent Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersshareholders or consent solicitation, with respect to the appointment, election or removal of director(s), except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by any New Independent Director (or a Replacement Independent Director) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 2 contracts
Sources: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (eHealth, Inc.)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2021 Annual Meeting pursuant to the Company’s bylaws Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2020 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, Agreement so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2021 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company or through any referendum of stockholders, (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving Starboard and the Company, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (BD) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other than at business combination with respect to the direction Company by such third party prior to such proposal becoming public, or (E) call or seek to call a special meeting of stockholders;
(vi) seek, alone or in concert with the consent of others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor, subject to Section 1(c)(iii).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by any Independent Designee (or a Replacement Director, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 2 contracts
Sources: Agreement (Box Inc), Agreement (Starboard Value LP)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2021 Annual Meeting pursuant to the Company’s bylaws Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2020 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified or entities listed on Exhibit A and the Board Observersignature pages hereto (referred to herein as the members of Starboard), but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2021 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates, and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the CompanyCompany or through any referendum of stockholders, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving the direction Company or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the consent Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of stockholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by any Starboard Independent Appointee (or a Starboard Replacement Director) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
Appears in 2 contracts
Sources: Agreement (Starboard Value LP), Shareholder Agreement (Commvault Systems Inc)
Standstill Provisions. (a) Dolphin agrees thatDuring the Standstill Period, from unless expressly authorized in writing to do so by the date Special Committee if it exists or the Board of this Agreement until Directors of the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws Company (the “Standstill PeriodCompany Board”)) if the Special Committee no longer exists, neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will▇▇ ▇▇▇▇ shall not, and Dolphin will shall cause each of such Affiliates and Associates its affiliates not to, directly or indirectly, in any manneracting alone or as part of a group:
(i) become the beneficial ownerMake, as such term is defined in Rule 13d-3 submit or declare any offer, proposal or indication of interest to (a) acquire a majority of the Exchange Act, of more than 9.90% voting or other equity securities of the Common StockCompany or a majority of the assets of the Company or (b) engage in any other transaction or series of related transactions that would result in a change of control of the Company (a “Control Transaction”); provided, however, that so long as ▇▇ ▇▇▇▇ complies with Section 3.1(x), ▇▇ ▇▇▇▇ may confidentially submit to the Special Committee if it exists or the Company Board if the Special Committee no longer exists proposals to engage in a Control Transaction;
(ii) engage in Enter into any solicitation of proxies agreement, arrangement or consents understanding, or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iii) form, join or in any way participate in any “group” , with any person (within excluding ▇▇ ▇▇▇▇ and any investment fund and investment account managed by ▇▇ ▇▇▇▇) for the meaning purpose of Section 13(d)(3) acquiring, holding, voting or disposing of the Exchange Act) Company’s equity securities or to otherwise act in concert with respect to the Common Stock Company’s equity securities;
(other than a “group” that includes all iii) Make, or some in any way participate in, directly or indirectly, any solicitation of proxies or shareholder written consents to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the persons identified on Exhibit A and Company in connection with or related in any way to any Control Transaction;
(iv) Make any director nomination or shareholder proposal with respect to the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof)Company; provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees ▇▇ ▇▇▇▇ complies with Section 3.1(x), ▇▇ ▇▇▇▇ may make non-public recommendations to be bound by the terms Company’s Nominating and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement Corporate Governance Committee with respect to such matters; provided, further, that the voting of Company’s Nominating and Corporate Governance Committee shall have no obligation to nominate or recommend any Common Stock, other than any such voting trust, arrangement candidate requested for nomination or agreement in accordance with this Agreementrecommendation by ▇▇ ▇▇▇▇;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as suchMake, or (C) instigatein any way participate in, supportdirectly or indirectly, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for to vote in favor of the election of any candidate for election to the Dolphin Director) in connection with Company Board nominated by any special meeting of the Company’s shareholders called by a person or persons party other than Dolphin for the purpose of removing or electing directors of the Company;
(Avi) make Take any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, foregoing actions in a manner that is hostile to and unsupported by the Special Committee if it exists or (B) other than at the direction or with Company Board if the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the CompanySpecial Committee no longer exists;
(vii) seek Acquire, offer to adviseacquire or agree to acquire, encouragedirectly or indirectly, support by purchase or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersotherwise, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Directora) in connection with any special meeting an amount of the Company’s shareholders called by a common stock that would exceed the 20% Limitation, or (b) any other rights or interests, including without limitation, options, warrants, swaps, derivatives, convertible securities, stock appreciation rights or other rights or instruments, whether real or synthetic, that would increase the aggregate economic or voting interest of ▇▇ ▇▇▇▇ and its affiliates in the Company in excess of the 20% Limitation;
(viii) Advise, assist, encourage or provide financing to any other person or persons other than Dolphin for the purpose of removing group undertaking or electing directors seeking to undertake any of the foregoing actions;
(ix) Publicly disclose any intention to take any of the foregoing actions;
(x) Take any action that would require the Company, the Special Committee if it exists or the Company Board if the Special Committee no longer exists to make any public disclosure regarding any of the foregoing actions or in response thereto; or
(viiixi) make any Publicly request the Company, the Special Committee if it exists or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined Board if the Special Committee no longer exists to trigger public disclosure obligations for amend any Partyof the foregoing provisions.
Appears in 2 contracts
Sources: Standstill Agreement, Standstill Agreement (Exco Resources Inc)
Standstill Provisions. (a) Dolphin Starboard agrees that, that from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2017 Annual Meeting pursuant to the Company’s bylaws Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2016 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(viv) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors, (B) otherwise seek to control or influence the managementprovided, Board or policies of the Companyhowever, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2017 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance with Starboard’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companynormal practices;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other than at business combination involving Starboard and the direction or with the consent of Company, (C) unless otherwise authorized by the Board, in the Dolphin Director’s capacity as affirmatively solicit a director of third party, on an unsolicited basis, to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases of Common Stock expressly permitted the Company by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of stockholders;
(vi) seek, alone or in concert with respect toothers, a mergerrepresentation on the Board, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change except as specifically permitted in capital structure, recapitalization, dividend or similar transaction involving the Companythis Agreement;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), each member of Starboard shall be entitled to: (i) vote their shares on any other proposal duly brought before the 2016 Annual Meeting or otherwise vote as each member of Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefore.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by the Appointed Directors of their fiduciary duties solely in their capacities as directors of the Company and in a manner consistent with their and Starboard’s obligations under this Agreement.
Appears in 2 contracts
Sources: Board Composition Agreement (Insperity, Inc.), Board Composition Agreement (Starboard Value LP)
Standstill Provisions. (a) Dolphin Subject to Section 2(b), each member of the Engine Group agrees that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws January 1, 2017 (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company’s shareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as members of the date hereofEngine Group); provided, however, that nothing herein shall will limit the ability of an Affiliate or Associate of Dolphin any member of the Engine Group to join the its respective “group” following the execution of this Agreement, so long as any such Affiliate or Associate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among any members of the Engine Group and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent any member of the Engine Group or their respective Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special the 2017 annual meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyCompany so long as such actions do not create a public disclosure obligation for any of the Parties, are undertaken on a basis reasonably designed to be confidential and are consistent with the past practices of the members of the Engine Group in such circumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company’s shareholders, (B) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any third party in any such activity, (BC) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to a merger, acquisition, recapitalization, restructuring, disposition or other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of business combination involving the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)knowingly encourage, offer, propose, initiate or support any third party in any such activity or (D) make any public statement with respect to, communication or encourage, solicit or negotiate with comment in opposition to any third party with respect to, a merger, consolidationacquisition, acquisition of control recapitalization, restructuring, disposition or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction combination involving the CompanyCompany that has been approved by the Board;
(vi) vote for any director or directors for election to the Board other than those nominated or supported by the Board;
(vii) except in accordance with Section 1, seek, alone or in concert with others, representation on the Board;
(viii) except in accordance with Section 1, seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersthe Company’s shareholders (other than such encouragement, except in accordance support or influence that is consistent with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of Company’s management or the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) Board’s recommendation in connection with any such matter);
(ix) call, seek to call, or to request the call of, a special meeting of the Company’s shareholders, or make a request for a list of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors any books and records of the Company; provided, however, the New Appointees shall have the right to request stocklist materials or other books and records of the Company, provided that any such materials are requested solely in his or her capacity as a director of the Company;
(x) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any Common Stock of the Company representing in the aggregate (among all members of the Engine Group and each of their respective Affiliates and Associates) in excess of 9.9% of the Company’s then outstanding Common Stock (other than securities issued or purchased by the Company pursuant to a stock split, stock dividend, stock repurchase or similar corporate action initiated by the Company with respect to any Common Stock beneficially owned by the Engine Group on the date of this Agreement);
(xi) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, any security of the Company or any right decoupled from such underlying security to any third party that would result in such third party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest of 5% or more of the shares of Common Stock outstanding at such time, except in each case either (A) in a transaction approved by the Board or (B) to a third party who is entitled, and following such transaction continues to be entitled, to file statements on Schedule 13G pursuant to Rule 13d-1(b) or Rule 13d-1(c) under the Exchange Act; or
(viiixii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), each member of the Engine Group will be entitled to:
(i) vote its shares on any other proposal unrelated to the election or removal of directors that is duly brought before the 2016 Annual Meeting; or
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefore.
Appears in 2 contracts
Sources: Shareholder Agreement (Sparton Corp), Agreement (Engine Capital, L.P.)
Standstill Provisions. (a) Dolphin agrees that, from Commencing on the date of this Agreement hereof and until the date that is ten (10) business days prior to Termination Date, unless otherwise agreed in writing by the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”)Equity One Board and Gazit Globe, neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin LIH will, and Dolphin will cause each member of such Affiliates and Associates not Liberty Group to, directly or indirectly, in any manner:
: (i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Equity One or EQY Common Stock, other than not make, engage, vote in accordance with Section 1 favor of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iii) form, join or in any way participate in or influence, directly or indirectly, a hostile takeover or other similar action or any “groupsolicitation,” (within as such term is used in the meaning of Section 13(d)(3) proxy rules of the Exchange ActCommission) with respect to the Common Stock by way of tender offer, exchange offer, merger or other business combination, proxies, consents (other than a “group” that includes all whether or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect relating to the election or removal of directors), voting agreements, change of management or otherwise, except in connection with any directors of the foregoing that is recommended or not opposed by the Equity One Board and that is not initiated by Liberty Group, provided, however, that the presence of the director designated by LIH on the Equity One Board will not violate this Section 2.8, and notwithstanding this Section 2.8, such board member may vote and take such other actions as he or she determines is appropriate in accordance with the exercise of his or her duties as a director and provided further that any member of Liberty Group may abstain from voting on any matter described in this Section 2.8 and, subject to Section 3.4, may tender shares of EQY Common Stock Beneficially Owned by such member in connection with any tender offer or exchange offer without violation of this Section 2.8, (ii) except as provided for in this Agreement, not seek, alone or in concert with others, election or appointment to, or representation on, or nominate or propose the nomination of any candidate to, the Equity One Board, (iii) not initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the Commission) stockholders of Equity One for the approval of stockholder proposals made to Equity One whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise, or cause or encourage or attempt to cause or encourage any other person to initiate any such stockholder proposal, regardless of its purpose, and (iv) not purchase or cause to be purchased or otherwise acquire or agree to acquire, or become or agree to become the Beneficial Owner of, any other securities issued by Equity One, or any securities convertible into or exchangeable for EQY Common Stock (other than EQY-CSC Class A Shares) or any other equity securities of Equity One, if in accordance with Section 1 any such case immediately after the taking of such action Liberty Group would, in the aggregate, Beneficially Own in excess of the greater of (A) a number of shares of voting stock of Equity One equal to 19.9% of the shares of Equity One that are outstanding as of the Closing (as such amount may be adjusted after the date of Closing for splits, reclassifications, recapitalizations, recombinations and/or similar events or transactions) (such number of shares to be agreed by the parties as of the Closing and set forth on Schedule I to be attached to this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support 15% of the Dolphin Director EQY Common Stock outstanding on a Fully Diluted Basis from time to time (including engaging in the “Ownership Cap”), which Ownership Cap will automatically be reduced from time to time, if Liberty Group sells any EQY Common Stock, to a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Companynew Ownership Cap that is equal to Liberty Group’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Boardthen Beneficial Ownership percentage, in the Dolphin Director’s capacity as a director aggregate, of the Company, or with respect to purchases shares of EQY Common Stock expressly permitted by then outstanding on a Fully Diluted Basis; provided, however that in all events Liberty Group may Beneficially Own or acquire up to 9.9% of the shares of EQY Common Stock then outstanding on a Fully Diluted Basis and Liberty Group may acquire shares in order to satisfy the ownership requirements set forth in Section 2(a)(i)2.2(ii) during any Cure Period; provided, offer, propose, or make however in all events any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer EQY Common Stock by Liberty Group in addition to those shares of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect EQY Common Stock acquired pursuant to the voting Subscription Agreement or disposition issuable upon the redemption of any securities of EQY-CSC Class A Shares acquired by LIH at Closing (the Company at any annual “Additional Shares”) may only be acquired, directly or special meeting of shareholdersindirectly, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in through a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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 PartyU.S. controlled entity.
Appears in 2 contracts
Sources: Equityholders Agreement (Gazit-Globe LTD), Equityholders Agreement (Equity One, Inc.)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2020 annual meeting of the Company’s stockholders (the “2020 Annual Meeting Meeting”) pursuant to the Company’s bylaws Amended and Restated By-laws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2019 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such Affiliates and Associates Covered Person not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company)consents, in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities of the Common Stock Company (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound in writing by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock Shares in any voting trust or subject any Common Stock Shares to any arrangement or agreement with respect to the voting of any Common StockShares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the appointment, election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2020 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company or through any referendum of stockholders, (B) make any offer or proposal (with or without conditions) with respect to any merger, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (BD) publicly comment on any third party proposal regarding any merger, takeover offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company by such third party (provided that this clause (D) shall not prevent such public comment after such proposal has become generally known to the public other than at the direction as a result of a disclosure by Starboard), or (E) call or seek to call a special meeting of stockholders;
(vi) seek, alone or in concert with the consent of others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote the Common Shares that it beneficially owns as it determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company on any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by the Starboard Designee (or the Starboard Replacement Director, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
Appears in 2 contracts
Sources: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (GCP Applied Technologies Inc.)
Standstill Provisions. (a) Dolphin Each Shareholder hereby agrees that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws through its termination, in accordance with its terms (the “Standstill Period”), neither Dolphin, it nor any of its controlled Affiliates or Associates (as used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the Securities and Exchange Commission (the “SEC”) under its control the Securities Exchange Act of 1934, as amended, or directionthe rules or regulations promulgated thereunder (the “Exchange Act”), nor and shall include all persons or entities that at any time during the term of the this Agreement become Affiliates or Associates that control of any person or direct Dolphin entity referred to in this Agreement) will, and Dolphin it will cause each of such its controlled Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special an extraordinary general meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 securities of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyCheck-Cap;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) or agreement of any kind with respect to the Common Stock any securities of Check-Cap (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following or agreement that includes all of the execution of this Agreement, so long as any such Affiliate agrees entities or persons under the Coordination Agreement and pursuant to be bound by the terms and conditions of this Agreementits terms);
(iviii) deposit any Common Stock securities of Check-Cap in any voting trust or subject any Common Stock securities of Check-Cap to any arrangement or agreement with respect to the voting of any Common Stocksecurities of Check-Cap, other than any such voting trust, arrangement or agreement solely among the members of EquityLine and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company with respect to Check-Cap or seek, knowingly encourage or, subject to Section 1 above, take any other action with respect to the appointment, election or removal of any directors (other than not in accordance with Section 1 of this Agreement), ;
(Bv) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) submit, initiate, make or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support be a proponent of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special extraordinary general meeting of shareholders of the CompanyCheck-Cap, or (B) other than at the direction submit, initiate, make or be a proponent of any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)any merger, offeracquisition, proposerecapitalization, restructuring, disposition or other business combination involving Check-Cap, (C) initiate, knowingly encourage or affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Check-Cap, or make any public statement with respect to, publicly encourage or encourage, solicit or negotiate with support any third party with respect toin making such an offer or proposal, a (D) publicly comment on any third party proposal (other than as permitted by this Agreement) regarding any merger, consolidationacquisition, acquisition of control recapitalization, restructuring, disposition, or other business combinationcombination with respect to Check-Cap by such third party, tender (E) call or exchange offerseek to call, purchaseor request the call of, sale alone or transfer in concert with others, an extraordinary general meeting of assets shareholders of Check-Cap, including any “town hall” meeting or securities(F) initiate, dissolution, liquidation, reorganization, change knowingly encourage or participate in capital structure, recapitalization, dividend any “withhold” or similar transaction involving campaign with respect to any annual or extraordinary general meeting of shareholders of Check-Cap;
(vi) seek, alone or in concert with others, representation on the CompanyCheck-Cap Board of Directors (the “Board”);
(vii) seek to advise, knowingly encourage, support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company Check-Cap at any annual or special extraordinary general meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or1 above;
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company Check-Cap that would not be reasonably determined to trigger public disclosure obligations for any Party;
(ix) seek publicly, alone or in concert with others, to amend any provision of the articles of association of Check-Cap, or engage in other actions that may impede the acquisition of control of Check-Cap by any person;
(x) demand an inspection of Check-Cap’s books and records;
(xi) (i) make any public proposal with respect to, (ii) make any public statement or otherwise seek to advise, assist or knowingly encourage any person in so encouraging or advising with respect to or (iii) initiate, knowingly encourage or in any way participate in, directly or indirectly: (A) any change in the number or term of directors serving on the Board or the filling of any vacancies on the Board, (B) any change in the capitalization, share repurchase programs and practices or dividend policy of Check-Cap, (C) any other change in Check-Cap’s management, governance, corporate structure, affairs or policies, (D) any tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale, recapitalization, restructuring, or other transaction with a third party that, in each case, results in a change in control of Check-Cap or the sale of substantially all of its assets (an “Extraordinary Transaction”), (E) causing a class of securities of Check-Cap to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of Check-Cap to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(xii) initiate, make or in any way participate, directly or indirectly, in any Extraordinary Transaction or make, directly or indirectly, any proposal, either alone or in concert with others, to Check-Cap or the Board that would reasonably be expected to require a public announcement or disclosure regarding any such matter;
(xiii) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any (i) material acquisition of any assets or businesses of Check-Cap or any of its subsidiaries; (ii) tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving any of the voting securities or any of the material assets or businesses of Check-Cap or any of its subsidiaries; or (iii) recapitalization, restructuring, liquidation, dissolution or other material transaction with respect to Check-Cap or any of its subsidiaries or any material portion of its or their businesses;
(xiv) institute, solicit, join (as a party) or assist any litigation, arbitration or other proceeding against Check-Cap or any of its current or former directors or officers (including derivative actions) other than (i) litigation by the Shareholders to enforce the provisions of this Agreement, (ii) the exercise of statutory appraisal rights, (iii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Check-Cap or its Affiliates against any Shareholder or their Affiliates, or (iv) responding to or complying with any validly issued legal process;
(xv) facilitate, support, knowingly encourage, or participate in or enter into any negotiations, agreements or understandings with any third party with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any third party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing; or
(xvi) publicly make or in any way advance publicly any request or proposal that Check-Cap or the Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Support Agreement (EquityLine Alternate Assets GP Inc.), Support Agreement (Check-Cap LTD)
Standstill Provisions. (a) Dolphin agrees that, from For the period of time commencing on the date of this Agreement until hereof and ending on the date that is ten six (106) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any month anniversary of the Affiliates or Associates that control or direct Dolphin willClosing Date, and Dolphin L▇▇▇▇ will cause each of such Affiliates and Associates not tonot, directly or indirectly, except as expressly approved or invited by ProQR in any mannerwriting:
(i) become acquire any securities of ProQR such that, following any such acquisition, L▇▇▇▇ would be the beneficial owner, owner (as such term is defined in determined pursuant to Rule 13d-3 of the Exchange Act, ) of more than 9.90% twenty percent (20%) of the Common Stockvoting power of the capital stock of ProQR then outstanding;
(ii) engage in propose to ProQR or to the ProQR securityholders any solicitation merger or other transaction that would constitute a Change of proxies Control;
(iii) publicly support or consents endorse a Third Party Tender / Exchange Offer to purchase securities of ProQR that represent a majority of the voting power of the capital stock of ProQR then outstanding; or
(iv) submit matters to, or become request the convening of, a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special general meeting of shareholders of ProQR.
(b) Notwithstanding the Company)provisions set forth in Section 4.12(a) (the “Standstill Provisions”):
(i) If at any time (A) a Third Party enters into a definitive agreement with ProQR providing for a Change of Control, (B) a Third Party commences a Third Party Tender / Exchange Offer that, if consummated, would result in a Change of Control, (C) ProQR publicly announces its support of, or intention to enter into, a Change of Control transaction with a Third Party, or (D) ProQR engages a financial advisor for the purpose of soliciting indications of interest or proposals regarding a Change of Control transaction and L▇▇▇▇ is not requested to participate in such process, then, in each case, the Standstill Provisions shall automatically be terminated and of no force or effect.
(ii) The Standstill Provisions do not preclude L▇▇▇▇ from:
(A) making confidential offers or proposals to ProQR’s Chief Executive Officer or Board; or
(B) (I) entering into a negotiated business arrangement with respect to the Common Stock, other than in accordance with Section 1 of ProQR as contemplated by this Agreement; provided or (II) otherwise acquiring (or privately proposing the acquisition thereof via a Lilly business development professional employee or other employees related thereto) assets of ProQR in the ordinary course of business via license, collaborative arrangement or otherwise (an “Ordinary Course Transaction”); provided, that nothing in this subsection no event shall prohibit Dolphin from taking any action during the Standstill Period assets involved in support such Ordinary Course Transaction represent a material portion of the Dolphin Director assets of ProQR or any of its Affiliates or require public disclosure thereof (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin if a definitive agreement for the purpose of removing or electing directors of the Company;such transaction is entered into between Lilly and ProQR and disclosure thereof is required by law).
(iii) formFor the avoidance of doubt, join or nothing contained in the Standstill Provisions shall be deemed to prevent any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) investment funds from acquiring Ordinary Shares or (B) above; provided that nothing pension or other employee benefit plan administrator for any pension or other employee benefit plan for L▇▇▇▇’▇ or its Affiliates’ employees from engaging in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director investment operations (including engaging trading and owning Ordinary Shares) that, in a solicitation the case of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or and (B) other than at are not directed by L▇▇▇▇, and are conducted without the direction intent or with the consent objective of the Board, in the Dolphin Director’s capacity as effecting a director Change of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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 PartyControl.
Appears in 2 contracts
Sources: Share Purchase Agreement (ProQR Therapeutics N.V.), Share Purchase Agreement (ProQR Therapeutics N.V.)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2022 annual meeting of the Company’s stockholders (the “2022 Annual Meeting Meeting”) pursuant to the Company’s bylaws Amended and Restated By-laws or (y) the date that is ninety (90) days prior to the first anniversary of the 2021 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such Affiliates and Associates Covered Person not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company)consents, in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities of the Common Stock Company (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound in writing by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock Shares in any voting trust or subject any Common Stock Shares to any arrangement or agreement with respect to the voting of any Common StockShares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v; seek or submit, or encourage any person or entity to seek or submit, nomination(s) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the appointment, election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2022 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(iv) (A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the CompanyCompany or through any referendum of stockholders, (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party prior to such proposal becoming public, (E) call or seek to call a special meeting of stockholders, or (BF) other than at the direction act by written consent;
(v) seek, alone or in concert with the consent of others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(viivi) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viiivii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 (including Sections 1(b)(ii) and 1(b)(iii) with respect to the 2021 Annual Meeting) and Section 2(a), Starboard shall be entitled to (i) vote the Common Shares that it beneficially owns as it determines in its sole discretion and (ii) subject to Section 12, disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company on any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by the New Independent Directors (or any Replacement Independent Directors, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
Appears in 2 contracts
Sources: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (Aci Worldwide, Inc.)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations for the 2014 2020 Annual Meeting pursuant to the Company’s bylaws Bylaws or (y) the date that is ninety (90) days prior to the first anniversary of the 2019 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its controlled Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its controlled Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock; with respect to the shares of Common Stock (other than a “group” that includes only all or some of the entities or persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A signature pages hereto as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit submit, or encourage any person or entity to seek or submit, nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the appointment, election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or any of its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2020 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are not publicly disclosed by Starboard or its representatives or Affiliates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the CompanyCompany or through any written consent of shareholders, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving Starboard (or its Affiliates or Associates) and the direction Company, (C) affirmatively solicit a third party to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases of Common Stock expressly permitted the Company by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of shareholders or act by written consent;
(vi) seek, alone or in concert with respect toothers, a mergerrepresentation on the Board, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change except as specifically permitted in capital structure, recapitalization, dividend or similar transaction involving the CompanySection 1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersshareholders or consent solicitation, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote the shares of Common Stock that it beneficially owns as it determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company on any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) or elsewhere in this Agreement shall be deemed to limit the exercise in good faith by an Appointed Director of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 2 contracts
Sources: Shareholder Agreement (Magellan Health Inc), Agreement (Starboard Value LP)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2017 annual meeting of stockholders (the “2017 Annual Meeting Meeting”) pursuant to the Company’s bylaws Bylaws or (y) the date that is one hundred thirty (130) days prior to the first anniversary of the 2016 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(viv) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2017 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are not publicly disclosed by Starboard or its representatives or affiliates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other than at business combination involving Starboard and the direction Company, (C) affirmatively solicit a third party, on an unsolicited basis, to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases of Common Stock expressly permitted the Company by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of stockholders;
(vi) seek, alone or in concert with respect toothers, a mergerrepresentation on the Board, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change except as specifically permitted in capital structure, recapitalization, dividend or similar transaction involving the CompanySection 1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote its shares on any other proposal duly brought before the 2016 Annual Meeting or otherwise vote as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor (in each case, subject to Section 1(f)(iii)).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by a New Appointee of his or her fiduciary duties solely in his or her capacity as a director of the Company.
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Brinks Co), Nomination and Standstill Agreement (Starboard Value LP)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 Company’s 2026 Annual Meeting of Stockholders (the “2026 Annual Meeting”) pursuant to the Company’s bylaws Amended and Restated Bylaws, as adopted and effective on June 29, 2023, or (y) the date that is one hundred (100) days prior to the first anniversary of the 2025 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees in writing to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2026 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives or Affiliates and Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(v) (A) make any proposal for consideration by shareholders stockholders at any annual Stockholder Meeting, (B) make any offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination involving the Company or any of its subsidiaries by such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of shareholders of the Companystockholders, or initiate or become a participant in any stockholder action by written consent;
(Bvi) other than at the direction seek, alone or in concert with the consent of others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersStockholder Meeting, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor (in each case, subject to Section 12).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by a New Director (or a Replacement Director, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 2 contracts
Sources: Agreement (Starboard Value LP), Agreement (Fortrea Holdings Inc.)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten thirty (1030) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2019 Annual Meeting (which, for the avoidance of doubt, shall be the first annual meeting of stockholders at which directors are elected following the Next Annual Meeting) pursuant to the Company’s bylaws Bylaws or (y) the date that is ninety (90) days prior to the first anniversary of the Next Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) i. engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) ii. form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A and the Board ObserverB, but does not include any other entities or persons not identified on Exhibit A B as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) iii. deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) ; iv. seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2019 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other than at business combination involving Starboard and the direction Company, (C) affirmatively solicit a third party to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or publicly encourage, solicit initiate or negotiate with support any third party with respect toin making such an offer or proposal, a (D) publicly comment on any third party proposal regarding any merger, consolidationacquisition, acquisition of control recapitalization, restructuring, disposition, or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person combination with respect to the voting Company by such third party prior to such proposal becoming public or disposition of any securities of the Company at any annual (E) call or seek to call a special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.stockholders;
Appears in 2 contracts
Sources: Agreement (Starboard Value LP), Shareholder Agreement (Comscore, Inc.)
Standstill Provisions. (a) Dolphin agrees The Investor Group Parties agree that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to three years after the Company’s bylaws 2023 annual meeting of stockholders (the through such time, “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willInvestor Group Parties shall not, and Dolphin will shall cause each of such their controlled Affiliates and Associates not to, directly or indirectly, to in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, Investor Group Parties but does not include any other entities or persons that are not identified on Exhibit A in the Investor Group Parties as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin the Investor Group Parties to join the such a “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the Investor Group Parties and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to to, the appointment, election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than in each case in opposition to the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any recommendation of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyBoard;
(v) seek, alone or in concert with others, representation on the Board;
(vi) (A) make any proposal for consideration by shareholders stockholders at any Applicable Meeting, or solicit the written consents of stockholders in lieu of any annual or special meeting in connection with any proposal, including, for the avoidance of shareholders doubt, any election of candidates to the Board if such nomination has not been previously approved by the Board or any proposal to amend the Company’s Certificate of Incorporation or By-Laws, (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Investor Group Parties and the Company, (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or knowingly publicly encourage, solicit initiate or negotiate with support any third party with respect toin making such an offer or proposal, or (D) call or seek to call a merger, consolidation, acquisition special meeting of control or other business combination, tender or exchange offer, purchase, sale or transfer stockholders of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual Applicable Meeting with respect to the appointment, election or special meeting removal of shareholdersdirector(s);
(viii) acquire, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking announce an intention to acquire, offer or propose to acquire, or agree to acquire, by purchase or otherwise, any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting security of the Company’s shareholders called by a person , including any stock, option, warrant, convertible security, stock appreciation right or persons other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than Dolphin for the purpose a broad-based market basket or index);
(ix) submit a formal demand to inspect a copy of removing or electing directors any books and records of the CompanyCompany under the Delaware General Corporation Law or any equivalent state or federal law; or
(viiix) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications communication with the Company Company’s management or the Board that would not be reasonably determined expected to trigger public disclosure obligations an obligation for any PartyParty to publicly disclose such communication.
Appears in 2 contracts
Sources: Settlement and Cooperation Agreement (Camac Fund, LP), Settlement & Cooperation Agreement (Pasithea Therapeutics Corp.)
Standstill Provisions. (a) Dolphin agrees that, from During the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws period (the “Standstill Period”), neither Dolphin, nor any ) commencing on the date of its Affiliates or Associates under its control or direction, nor any this Agreement and ending on the date that is two (2) years from the effective date of a Form 15 filed by the Company in respect of the Affiliates or Associates that control or direct Dolphin willClass A Common Stock, Executive shall not, and Dolphin will shall cause each and direct his Family Members and Affiliates (and any Associates of such Affiliates the foregoing) and Associates any other member of the Executive 13D Group not to, directly or indirectly, in any manner:, take any of the following actions (unless prior Independent Approval has been obtained):
(a) acquire, offer to acquire, or cause to be acquired any ownership or other interest in any Class A Common Stock or any Synthetic Position, or otherwise enter into any contract, arrangement, understanding or relationship (or modify or amend any such existing contract, arrangement, understanding or relationship) with respect to any Class A Common Stock or any Synthetic Position, such that Executive would have Beneficial Ownership of more than (i) 25% of the issued and outstanding Class A Common Stock or (ii) in the event Executive’s Beneficial Ownership is greater than 25% of the issued and outstanding Class A Common Stock (after receiving prior Independent Approval hereunder), any acquisition of more than 3% of the issued and outstanding Class A Common Stock immediately following the consummation of such transaction;
(b) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, Voting Securities, or become the beneficial owner, a “participant” (as such term is defined in Rule 13d-3 Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist, advise, knowingly encourage or knowingly influence 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 Voting Securities, against (or to withhold support for) or that is intended to seek the removal of, or is in support of any “competing” nominee or slate running against, any Independent Director (as defined herein) then serving on the Board or any Company Nominee (as defined herein);
(c) other than through open market or block trade brokered sale transactions where (i) the identity of the purchaser is unknown to Executive, or (ii) Executive does not directly or indirectly select or influence the selection of the purchaser, sell, offer or agree to sell any Voting Securities of the Company to any Third Party that, to the knowledge of Executive after due inquiry, (x) has aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.9% of the issued and outstanding Common Stock or (y) would result in such Third Party having aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.9% of the issued and outstanding Common Stock;
(d) 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, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or a substantial portion of the Company’s assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or any of their respective securities (each, an “Extraordinary Transaction”);
(e) except as is reasonably acceptable to the Company, form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 Voting Securities (excluding any group composed solely of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking Executive’s Family Members and his and their respective Affiliates and any action during the Standstill Period in support member of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companycurrent Executive 13D Group);
(iiif) formenter into any discussions, join negotiations, agreements, or in understandings with any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) Third Party with respect to the Common Stock (other than a “group” that includes all or some any of the persons identified on Exhibit A and the Board Observerforegoing, but does not include or assist, advise, knowingly encourage or knowingly influence any other entities Third Party to take any action or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as make any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement statement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Companyforegoing, or (B) other than at the direction otherwise take or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, proposeknowingly cause any action, or make any public statement with respect tostatement, or encourage, solicit or negotiate inconsistent with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companyforegoing; or
(viiig) make (i) contest the validity of, or (ii) publicly request any request or submit waiver of, the obligations set forth in this Section 1; provided, that clause (g) shall not be deemed to prevent Executive from defending any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with claim by the Company that would Executive has breached this Section 1. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 1 shall not be reasonably determined deemed to trigger public disclosure obligations for any Partyrestrict Executive in the exercise of his fiduciary duties to the Company and all of its stockholders.
Appears in 2 contracts
Sources: Cooperation Agreement (TuSimple Holdings Inc.), Cooperation Agreement (Chen Mo)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 Annual Meeting annual meeting of stockholders of the Company pursuant to the Company’s bylaws or (ii) the date that is one-hundred (100) days prior to the first anniversary of the 2013 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin direction will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that improperly seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companydirectors;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, recapitalization, restructuring, disposition or other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of business combination involving Starboard and the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)encourage, offer, propose, initiate or support any other third party in any such related activity or (C) make any public statement communication in opposition to any Company acquisition or disposition activity approved by the Board;
(vi) seek, alone or in concert with respect toothers, or encouragerepresentation on the Board, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change except as specifically contemplated in capital structure, recapitalization, dividend or similar transaction involving the CompanySection 1;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), each member of Starboard shall be entitled to:
(i) vote their shares on any other proposal duly brought before the 2013 Annual Meeting, or otherwise vote as each member of Starboard determines in its sole discretion; or
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefore; provided that, as applicable, all such activity is in compliance with the requirements of this Agreement.
Appears in 2 contracts
Sources: Agreement (Starboard Value LP), Shareholder Agreement (Calgon Carbon Corporation)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations for the 2014 2021 Annual Meeting pursuant to the Company’s bylaws Amended and Restated Articles of Incorporation, as amended, provided, that if the 2021 Annual Meeting has been changed to be more than thirty (30) calendar days before the date contemplated by the Company’s 2020 proxy statement or if the date of the 2021 Annual Meeting is scheduled to be more than thirty (30) calendar days before the one-year anniversary of the date of the 2020 Annual Meeting, then the Company shall provide Starboard with prior written notice of the date of the 2021 Annual Meeting at least fifteen (15) business days before the date on which notice of the date of the 2021 Annual Meeting is given to shareholders or made public, whichever first occurs, or (y) the date that is one hundred (100) days prior to the first anniversary of the 2020 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2021 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving Starboard and the direction Company or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the consent Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party prior to such proposal becoming public, or (E) call or seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersshareholders with respect to the appointment, election or removal of director(s), except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by any Starboard Independent Appointee (or a Starboard Replacement Director) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 2 contracts
Sources: Shareholder Agreement (Mednax, Inc.), Shareholder Agreement (Starboard Value LP)
Standstill Provisions. (a) Dolphin agrees that, from During the date of this Agreement until period commencing on the Signing Date and ending on the date that is ten (10) business [***] days prior to after the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws Signing Date (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, the Purchaser nor any of the Purchaser’s Affiliates or Associates that are under its control or direct Dolphin will, and Dolphin will cause each of such Affiliates and Associates not toin any manner, directly or indirectly, in any manner:
7.1 make, effect, initiate, cause or participate in (i) become the any acquisition of beneficial owner, as such term is defined in Rule 13d-3 ownership of any securities of the Exchange ActCompany, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation acquisition of proxies all or consents substantially all of the assets of the Company, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or become a “participant” in a extraordinary transaction involving the Company or involving any securities of the Company, or (iv) any “solicitation” of “proxies” (as such those terms are defined used in Regulation 14A under the proxy rules of the Securities and Exchange Act of proxies Commission) or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) 7.2 form, join or in any way participate in any a “group” (within the meaning of Section 13(d)(3) of as defined in the Exchange Act, and the rules promulgated thereunder) with respect to the Common Stock (other than a “group” that includes all or some beneficial ownership of any securities of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this AgreementCompany;
(iv) deposit any Common Stock 7.3 act, alone or in any voting trust or subject any Common Stock concert with others, to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board board of directors or policies of the Company, other than ;
7.4 take any action that would be reasonably expected to require the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party Company to do make a public announcement regarding any of the actions types of matters set forth in clause “(Aa)” of this sentence;
7.5 agree or offer to take, or propose (publicly or otherwise) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from the taking of, any action during the Standstill Period referred to in support Sections 7.1 through 7.4;
7.6 assist any other Person to take any action of the Dolphin Director (including engaging type referred to in a solicitation of proxies for the election Sections 7.1 through 7.5;
7.7 enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the Dolphin Director) in connection with foregoing; or
7.8 request or propose that the Company or any special meeting of the Company’s shareholders called by a person Representatives amend, waive or persons other than Dolphin for consider the purpose amendment or waiver of removing or electing directors any provision set forth in this Section 7. Notwithstanding anything to the contrary in the foregoing sentence, each of the Company;
restrictions contained in this Section 7 (Acollectively, the “Standstill”) make shall lapse at such time as: (x) the Company enters into a definitive agreement with any proposal for consideration by shareholders at any annual person not affiliated with Purchaser with respect to a merger, sale of assets or special meeting securities or other business combination as a result of shareholders which such other person would succeed to a majority of the voting securities, assets or business of the Company, or (By) other than at the direction a person not affiliated with Purchaser has commenced an offer (or with the consent publicly announced an intention to offer) to acquire a majority of the Board, Company’s outstanding voting 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 Dolphin Director’s capacity as a director outstanding voting securities of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, (z) the Company publicly discloses that it has waived any standstill or make similar provision in any public statement with respect to, or encourage, solicit or negotiate with other agreement between the Company and any third party with respect toparty, a merger, consolidation, acquisition of control including any provision analogous or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or substantially similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities Standstill. Neither the termination of the Company at any annual or special meeting Standstill nor the expiration of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support will terminate or otherwise affect any of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms provisions 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 PartyAgreement.
Appears in 2 contracts
Sources: Collaboration, License and Option Agreement (Cue Biopharma, Inc.), Collaboration, License and Option Agreement (Cue Biopharma, Inc.)
Standstill Provisions. (a) Dolphin agrees that, from Beginning on the date of this Agreement until the date third anniversary of the Share Acquisition Closing, in the case of Alcatel, or the Asset Purchase Closing, in the case of Corning (in each case, as applicable to such Stockholder, the "STANDSTILL PERIOD"), without the prior written consent of the Board or approval by vote at a meeting of the Board (excluding, in the case of Corning, the Corning Designee), each Stockholder covenants and agrees not to, and that is ten it shall not cause or permit its respective Affiliates to, directly or indirectly, alone or in concert with any other Affiliate, group or Person:
(10a) business days prior to the deadline except for the submission Alcatel Shares and the Corning Shares, acquire, offer or propose to acquire or agree to acquire, directly or indirectly, whether through market purchases, tender or exchange offer, acquisition of shareholder nominations control (including by way of merger or consolidation) or otherwise, record or beneficial ownership of, or the right to vote, any Avanex Securities; provided, however, that the prior written consent of the Board shall not be required for (i) the 2014 Annual Meeting pursuant acquisition of any Avanex Securities resulting from a stock split, stock dividend or similar recapitalization by Avanex, or (ii) incidental indirect investments made by employee benefit plan-related trusts;
(b) propose or seek to effect a merger, consolidation, recapitalization, reorganization, restructuring, sale, lease, exchange or other disposition of substantially all of the Company’s bylaws (the “Standstill Period”)assets of, neither Dolphinor other business combination involving, nor or a tender or exchange offer for securities of, Avanex or any of its Affiliates subsidiaries or Associates under its any material portion of Avanex's or such subsidiary's business or assets, or any other type of transaction that would result in the stockholders of Avanex immediately preceding such transaction holding, directly or indirectly, less than fifty percent (50%) of the equity interests in the surviving or resulting entity of such transaction or in any parent entity immediately following such transaction (any such action in this Section 2.1(b) being referred to herein as an "AVANEX TRANSACTION PROPOSAL");
(c) publicly seek to exercise any control or direction, nor influence over the management of Avanex or the Board or any of the Affiliates businesses, operations or Associates policies of Avanex, provided, however, that control the Corning Designee may take any action necessary in order for such designee to fulfill his or direct Dolphin will, and Dolphin will cause each her fiduciary obligations to the stockholders of such Affiliates and Associates not toAvanex;
(d) solicit proxies (or written consents) or assist or participate in any other way, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies (or consents written consents), or otherwise become a “participant” "PARTICIPANT" in a “solicitation” "SOLICITATION," or assist any "PARTICIPANT" in a "SOLICITATION" (as such terms are defined in Regulation 14A under the Exchange Act of proxies Act) in opposition to the recommendation or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders proposal of the Company)Board; or
(e) except as contemplated herein, form, join in each caseor in any other way (including by deposit of Avanex Securities) participate in a "group" with unaffiliated Persons, or in a partnership, pooling agreement, syndicate or voting trust, with respect to the Common Stockany of Avanex Securities, other than or enter into any agreement or arrangement or otherwise act in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection concert with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin unaffiliated Person, for the purpose of removing acquiring, holding, voting or electing directors disposing of the Company;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof)Avanex Securities; provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution provisions of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock Section 2.1 shall not apply to any arrangement acquisition by Alcatel or agreement any of its Affiliates, or by Corning or any of its Affiliates, of up to five percent (5%) in the aggregate of Avanex Securities pursuant to an acquisition, business combination or merger with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation an entity that holds Avanex Securities on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors date of the Company closing of such acquisition, business combination or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees The Prospective Acquiror shall ensure that, from during the one year period commencing on the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws letter agreement (the “Standstill Period”), neither Dolphin, the Prospective Acquiror nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin subsidiaries will, and Dolphin will cause each of such Affiliates and Associates not toin any manner, directly or indirectly, in any manner:
(a) make, effect, initiate, cause or participate in (i) become the any acquisition of beneficial owner, as such term is defined in Rule 13d-3 ownership of any securities of the Exchange Act, Company or any securities of more than 9.90% any subsidiary or other affiliate of the Common Stock;
Company, (ii) engage in any solicitation acquisition of proxies any assets of the Company or consents any assets of any subsidiary or become a “participant” in a other affiliate of the Company, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, reorganization, restructuring, liquidation or dissolution involving the Company or any subsidiary or other affiliate of the Company, or involving any securities or assets of the Company or any securities or assets of any subsidiary or other affiliate of the Company, or (iv) any “solicitation” of “proxies” (as such those terms are defined used in Regulation 14A under the proxy rules of the Securities and Exchange Act of proxies Commission) or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiib) form, join or in any way participate in any a “group” (within as defined in the meaning Securities Exchange Act of Section 13(d)(3) of 1934 and the Exchange Actrules promulgated thereunder) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting beneficial ownership of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(Ac) take any action that would reasonably be expected to require the Company to make a public announcement regarding any proposal for consideration by shareholders of the types of matters set forth in clause “(a)” of this sentence; or
(d) agree or offer to take, or publicly propose the taking of, any action referred to in clause “(a)”, “(b)” or “(c)” of this sentence. Nothing in this Section 1 shall (x) prohibit the Prospective Acquiror from making at any annual time during the Standstill Period, confidential proposals to the Company’s management or special meeting board of shareholders directors relating to any of the Companymatters set forth in clause “(a)” of this Section 1; provided that from and after receipt of written notice from the Company that it is terminating all negotiations regarding a possible transaction with Prospective Acquiror, this clause (x) shall no longer be effective; or (By) other than at the direction or with the consent of the Board, restrict any investment in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company by or on behalf of any independently managed brokerage or investment account, pension plan, employee benefit plan or similar trust, in each case so long as such investment is not made at the direction of, or otherwise based on discussions by or with, the Prospective Acquiror or any entity controlling, controlled by Rovi Corporation or under common control with the Prospective Acquiror, or based on discussions by or with any financial advisor to the Prospective Acquiror regarding the Company. Notwithstanding anything to the contrary contained in this letter agreement, if, at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action time during the Standstill Period in support Period, (i) any Person (other than the Prospective Acquirer) or group of the Dolphin Director Persons (including engaging in A) commences, or announces an intention to commence, a solicitation tender or exchange offer for at least 15% of proxies for the election of the Dolphin Director) in connection with any special meeting class of the Company’s shareholders called by securities, (B) commences, or announces an intention to commence, a person proxy contest or persons other than Dolphin for a solicitation of consents with respect to the purpose election of removing any director or electing directors of the Company; or
, (viiiC) make acquires beneficial ownership of at least 15% of any request class of the Company’s securities, or submit any proposal (D) enters into, or announces an intention to waiveenter into, terminate or amend the terms of this Agreement other than through non-public communications an agreement with the Company that would not contemplating the acquisition (by way of merger, tender offer or otherwise) of at least 15% of any class of the Company’s securities or all or a substantial portion of the assets of the Company or any of the Company’s subsidiaries, or (ii) the Company releases any Person from restrictions similar to those set forth in this Section 1, then (in any of such cases) the restrictions set forth in this Section 1 shall immediately terminate and cease to be reasonably determined to trigger public disclosure obligations for of any Partyfurther force or effect.
Appears in 1 contract
Standstill Provisions. An Investor shall not, and shall not suffer or permit any Affiliates or Associates of such Investor to, whether acting alone or in concert with others:
(a) Dolphin agrees thatmake, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, nor or in any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin will cause each of such Affiliates and Associates not toway participate in, directly or indirectly, in any manner:
"solicitation" of "proxies" (i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined used in Regulation 14A promulgated under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) to vote or consent with respect to any Voting Securities of Para▇▇▇▇▇▇ ▇▇ any way that is inconsistent with the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions provisions of this Agreement;
(ivb) unless Para▇▇▇▇▇▇ ▇▇▇ll be in material breach of Section 9, become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) in opposition to a Board slate of Para▇▇▇▇▇▇ ▇▇▇inated by the Board;
(c) initiate or propose the approval of one or more shareholder proposals with respect to Para▇▇▇▇▇▇ ▇▇ described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce any other Person to initiate any shareholder proposal with respect to Para▇▇▇▇▇▇; 6
(d) except in accordance with Section 9 or solely in connection with the termination of an executive employment contract, seek election to or seek to place a representative on the Board or seek the removal of any member of the Board;
(e) in any way that is inconsistent with the terms of this Agreement, (i) solicit, seek to effect, negotiate with or provide non-public information to any other Person with respect to, (ii) make any statement or proposal, whether written or oral, to the Board or any director or officer of Para▇▇▇▇▇▇ ▇▇▇h respect to or (iii) otherwise make any public announcement or proposal whatsoever with respect to, any form of business combination transaction (with any Person) involving Para▇▇▇▇▇▇ ▇▇ the acquisition of a substantial portion of the equity securities or assets of Para▇▇▇▇▇▇ ▇▇ any Subsidiary of Para▇▇▇▇▇▇, ▇▇cluding a merger, consolidation, tender offer, exchange offer or liquidation of Para▇▇▇▇▇▇'▇ ▇▇▇ets, or any restructuring, recapitalization or similar transaction with respect to Para▇▇▇▇▇▇ ▇▇ any material Subsidiary of Para▇▇▇▇▇▇; ▇▇ovided, however, that the foregoing shall not (x) apply to any discussion between or among the Investor and Para▇▇▇▇▇▇ ▇▇ any of their respective Affiliates, Associates, officers, employees agents or representatives or (y) in the case of clause (ii) above, be interpreted to limit the ability of the Investor, or any Shareholder Director or Transferee Director to make any such statement or proposal or to discuss any such proposal with any officer or director of or advisor to Para▇▇▇▇▇▇ ▇▇ advisor to the Board unless, in either case, it would reasonably be expected to require Para▇▇▇▇▇▇ ▇▇ make a public announcement regarding such discussion, statement or proposal;
(f) form, join or participate in or encourage the formation of a Group with respect to any Voting Securities of Para▇▇▇▇▇▇, ▇▇her than a Group consisting solely of the Investors, Para▇▇▇▇▇▇ ▇▇▇ Affiliates and Associates of the Investors and Para▇▇▇▇▇▇; ▇▇ovided, that, except in connection with a Fair Proposal in accordance with Section 6, no Investor nor Affiliates or Associates of such investor shall in any case form, join or participate in or encourage the formation of any Group of which the members, together with all of such members' respective Affiliates and Associates, will, together with the Investor and the Affiliates and Associates of the Investor, Beneficially Own 66-2/3% or more of the Total Voting Power of Para▇▇▇▇▇▇;
(g) except in compliance with Section 5, deposit any Common Stock in any Voting Securities of Para▇▇▇▇▇▇ ▇▇▇o a voting trust or subject any Common Stock such Voting Securities to any arrangement or agreement with respect to the voting of any Common Stockthereof, other than any such voting trust, arrangement or agreement (i) the only parties to, or beneficiaries of, which are the Investor, Qualified Parties, Para▇▇▇▇▇▇ ▇▇ Affiliates and Associates of the Investor or Para▇▇▇▇▇▇ ▇▇▇ (ii) the terms of which do not require or expressly permit any party thereto to act in accordance a manner inconsistent with this Agreement;
(v) (A) seek representation on ; provided that all of the Board (other than in accordance with Section 1 Voting Securities deposited into any such trust or subjected to any arrangement or agreement, the parties to or beneficiaries of which include Qualified Parties, shall be deemed to be Beneficially Owned by the respective Investor for all purposes of this Agreement; or
(h) publicly disclose any intention, plan or submit nominations in furtherance of a “contested solicitation” for arrangement inconsistent with the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 terms of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any such disclosure privately if it would reasonably be expected to require Para▇▇▇▇▇▇ ▇▇ make a public statement with respect toannouncement regarding such intention, plan or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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 Partyarrangement.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2015 Annual Meeting pursuant to the Company’s bylaws or (ii) the date that is one hundred thirty-five (135) days prior to the first anniversary of the 2014 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2015 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, (B) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Starboard and the Company, or (BC) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition or other than at business combination with respect to the direction Company by such third party prior to such proposal becoming public;
(vi) seek, alone or in concert with the consent of others, representation on the Board, except as specifically contemplated in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), each member of Starboard shall be entitled to:
(i) vote its or his shares on any other proposal duly brought before the 2014 Annual Meeting, or otherwise vote as each member of Starboard determines in its or his sole discretion; or
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor; provided that, as applicable, all such activity is in compliance with the requirements of this Agreement.
(c) The Company agrees that it shall provide Starboard written notice of the date set for the 2015 Annual Meeting at least fifteen (15) business days prior to the date that is one hundred twenty (120) days prior to the 2015 Annual Meeting.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations for the 2014 2019 Annual Meeting pursuant to the Company’s bylaws Bylaws or (y) the date that is one-hundred (100) days prior to the first anniversary of the 2018 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons that are not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit submit, or encourage any person or entity to seek or submit, nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the appointment, election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2019 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are not publicly disclosed by Starboard or its representatives or Affiliates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the CompanyCompany or through any written consent of shareholders, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving Starboard and the direction Company, (C) affirmatively solicit a third party to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of tender offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases of Common Stock expressly permitted the Company by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with respect toothers, a mergerrepresentation on the Board, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change except as specifically permitted in capital structure, recapitalization, dividend or similar transaction involving the CompanySection 1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote the Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor (in each case, subject to Section 1(c)(iii)).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by a New Director of such person’s fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
Appears in 1 contract
Sources: Shareholder Agreement (Bemis Co Inc)
Standstill Provisions. (a) Dolphin agrees thatFor purposes of this Agreement, the “Standstill Period” shall be from the date of this Agreement until January 31, 2027; provided, however, that if the date that New Class III Director is ten (10) business renominated for election to the Board at the 2027 Annual Meeting by the Company and such final decision of the Board to so renominate the New Class III Director is shared with the Stockholder in writing at least thirty days prior to the advance notice deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to (as set forth in the Company’s bylaws Amended and Restated By-Laws) in connection with the 2027 Annual Meeting, then the Standstill Period shall be extended automatically and without further action by any Party until May 31, 2028.
(b) During the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStockholder shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
: (i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, including any solicitation of consents that seeks to call a special meeting of shareholders stockholders of the Company), in each case, case with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting securities of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
; (iiiii) form, join join, or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof)Stock; provided, however, that nothing herein shall limit the ability of an Affiliate or Associate of Dolphin the Stockholder to join the a “group” with the Stockholder following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
; (iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of the Stockholder and otherwise in accordance with this Agreement;
; (v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the Company, other than the Dolphin Director in his capacity as such, or Board; (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;v)
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders of the Companya Stockholder Meeting, or (B) make any offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving the direction Company or any of its subsidiaries (provided that nothing in this clause (B) shall prohibit the Stockholder from making any confidential proposal to the Board), (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring,
(c) Nothing in Section 2(b) shall be deemed to limit the consent exercise in good faith by each of the Board, New Directors of such person’s fiduciary duties solely in the Dolphin Directorsuch person’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
Appears in 1 contract
Standstill Provisions. (a) Dolphin WW Investors agrees that, from the date of this Agreement until the date that is ten (10) business days prior to expiration of the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willshall, and Dolphin will it shall cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(iia) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiib) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin WW Investors to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivc) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of WW Investors and otherwise in accordance with this Agreement;
(vd) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companydirectors;
(Ai) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, (ii) make any offer or proposal (Bwith or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other than at business combination involving WW Investors and the direction Company, (iii) affirmatively solicit a third party, on an unsolicited basis, to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (iv) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other business combination with respect to purchases of Common Stock expressly permitted the Company by Section 2(a)(i), offer, proposesuch third party prior to such proposal becoming public, or make any public statement with respect to, (v) call or encourage, solicit or negotiate with any third party with respect to, seek to call a merger, consolidation, acquisition special meeting of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companystockholders;
(viif) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(g) seek to advise, encouragesupport, support influence or influence knowingly encourage any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking ;
(h) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any action during the Standstill Period in support voting stock of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection Company that, together with any special meeting voting stock beneficially owned thereby, represents in the aggregate in excess of 4.9% of the Company’s shareholders called by outstanding voting stock;
(i) institute any litigation against the Company, its directors or its officers, make any “books and records” demands against the Company or make application or demand to a court or other person or persons entity for an inspection, investigation or examination of the Company or its subsidiaries or Affiliates; provided, however, that nothing shall prevent WW Investors from bringing litigation to enforce the provisions of this Agreement;
(j) enter into or maintain any economic, compensatory, pecuniary or other than Dolphin arrangements with any director or nominees for the purpose of removing or electing directors director of the Company; or, other than the New WW Appointees;
(viiik) other than in ordinary open market sale transactions on the New York Stock Exchange in which the identity of the purchaser is not known and in accordance with applicable securities laws and subject to Section 1(c)(vii) of this Agreement, sell or agree to sell, through swap or hedging transactions or otherwise, any shares of Common Stock or any derivatives relating to Common Stock to any third party;
(l) make any request or submit any proposal to waive, terminate or 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; or
(m) enter into any negotiations, discussions, agreement, arrangement or understanding with any person or entity concerning any of the foregoing (other than this Agreement) or encourage or solicit any person or entity to undertake any of the foregoing activities.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees that, from During the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws period (the “Standstill Period”), neither Dolphin, nor any ) commencing on the Effective Date and ending on the date that is two (2) years from the effective date of its Affiliates or Associates under its control or direction, nor any a Form 15 filed by the Company in respect of the Affiliates or Associates that control or direct Dolphin willClass A Common Stock, Executive shall not, and Dolphin will shall cause each and direct his Family Members and Affiliates (and any Associates of such Affiliates the foregoing) and Associates any other member of the Executive 13D Group not to, directly or indirectly, in any manner:, take any of the following actions (unless prior Independent Approval has been obtained):
(a) acquire, offer to acquire, or cause to be acquired any ownership or other interest in any Class A Common Stock or any Synthetic Position, or otherwise enter into any contract, arrangement, understanding or relationship (or modify or amend any such existing contract, arrangement, understanding or relationship) with respect to any Class A Common Stock or any Synthetic Position, such that Executive would have Beneficial Ownership of more than (i) 25% of the issued and outstanding Class A Common Stock or (ii) in the event Executive’s Beneficial Ownership is greater than 25% of the issued and outstanding Class A Common Stock (after receiving prior Independent Approval hereunder), any acquisition of more than 3% of the issued and outstanding Class A Common Stock immediately following the consummation of such transaction;
(b) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, Voting Securities, or become the beneficial owner, a “participant” (as such term is defined in Rule 13d-3 Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist, advise, knowingly encourage or knowingly influence 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 Voting Securities, against (or to withhold support for) or that is intended to seek the removal of, or is in support of any “competing” nominee or slate running against, any Independent Director (as defined herein) then serving on the Board or any Company Nominee (as defined herein);
(c) other than through open market or block trade brokered sale transactions where (i) the identity of the purchaser is unknown to Executive, or (ii) Executive does not directly or indirectly select or influence the selection of the purchaser, sell, offer or agree to sell any Voting Securities of the Company to any Third Party that, to the knowledge of Executive after due inquiry, (x) has aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.9% of the issued and outstanding Common Stock or (y) would result in such Third Party having aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.9% of the issued and outstanding Common Stock;
(d) 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, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or a substantial portion of the Company’s assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or any of their respective securities (each, an “Extraordinary Transaction”);
(e) except as is reasonably acceptable to the Company, form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 Voting Securities (excluding any group composed solely of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking Executive’s Family Members and his and their respective Affiliates and any action during the Standstill Period in support member of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companycurrent Executive 13D Group);
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(vf) (Ai) seek representation on solicit, initiate, discuss, negotiate, enter into or effectuate, directly or indirectly, any related party transaction between the Board Company or any of its subsidiaries and Hydron, Inc. or any of its subsidiaries, or (other than in accordance with Section 1 of this Agreementii) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors cause any funds of the Company or take any other action of its subsidiaries to be used for or to advance the business of Hydron, Inc. or its subsidiaries.
(g) enter into any discussions, negotiations, agreements, or understandings with any Third Party with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) foregoing, or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking assist, advise, knowingly encourage or knowingly influence any Third Party to take any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or statement with respect to purchases any of Common Stock expressly permitted by Section 2(a)(i)the foregoing, offer, proposeor otherwise take or knowingly cause any action, or make any public statement with respect tostatement, or encourage, solicit or negotiate inconsistent with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companyforegoing; or
(viiii) make contest the validity of, or (ii) publicly request any request or submit waiver of, the obligations set forth in this Section 1; provided, that clause (g) shall not be deemed to prevent Executive from defending any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with claim by the Company that would Executive has breached this Section 1. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 1 shall not be reasonably determined deemed to trigger public disclosure obligations for any Partyrestrict Executive in the exercise of his fiduciary duties to the Company and all of its stockholders.
Appears in 1 contract
Sources: Cooperation Agreement (Chen Mo)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 Company’s 2026 Annual Meeting of Stockholders (the “2026 Annual Meeting”) pursuant to the Company’s bylaws Fourth Amended and Restated Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2025 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees in writing to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2026 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives or Affiliates and Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(v) (A) make any proposal for consideration by shareholders stockholders at any annual Stockholder Meeting, (B) make any offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination involving the Company or any of its subsidiaries by such third party (provided that this clause (D) shall not prevent such public comment after such proposal has become generally known to the public other than as a result of a disclosure by Starboard) or (E) call or seek to call a special meeting of shareholders of the Companystockholders, or initiate or become a participant in any stockholder action by written consent;
(Bvi) other than at the direction seek, alone or in concert with the consent of others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersStockholder Meeting, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor (in each case, subject to Section 12).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by a New Director (or a Replacement Director, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees that, from the date of this Agreement until the date that is ten (10) business days prior Prior to the deadline for Termination Date, without the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any prior written consent of the Affiliates or Associates that control or direct Dolphin willBoard, the members of the Stockholder Group shall not, and Dolphin will shall cause each of such Affiliates and Associates their respective Representatives not to, in each case, directly or indirectly, in whole or in part, in any manner:
(ia) become the beneficial owneracquire, as such term is defined in Rule 13d-3 offer or seek to acquire, agree to acquire or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Exchange ActCompany generally on a pro rata basis or pursuant to an Extraordinary Transaction approved by the Board), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Company (other than through a broad-based market basket or index fund) or any voting rights decoupled from the underlying voting securities which would result in the Stockholder Group owning, controlling or otherwise having any beneficial or other ownership interest of, in the aggregate, more than 9.90% four and nine tenths percent (4.9%) of the shares of Common StockStock outstanding at such time;
(b) (i) nominate, recommend for nomination or give notice of an intent to nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected, except as expressly permitted by Section 2; (ii) engage initiate, knowingly encourage or participate in any solicitation of proxies or proxies, consents or become a “participant” consent revocations in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act respect of proxies any election contest or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, removal contest with respect to the Common StockCompany’s directors; (iii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other than business before, any Stockholder Meeting; (iv) initiate, knowingly encourage or participate in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies proxies, consents or consent revocations in respect of any stockholder proposal for the election of the Dolphin Directorconsideration at, or other business brought before, any Stockholder Meeting; (v) call or seek to call, or request to call, alone or in connection concert with others, any special Stockholder Meeting, whether or not such a meeting of is permitted by the Company’s shareholders called Charter or Bylaws, or any town hall meeting or similar meeting, or initiate, knowingly encourage or participate in any stockholder action by a person written consent; or persons (vi) initiate, knowingly encourage or participate in any “withhold” or similar campaign with respect to any proposal for consideration at, or other than Dolphin for the purpose of removing or electing directors of the Companybusiness brought before, any Stockholder Meeting;
(iiic) form, join or in any way participate in or with any “group” (within the meaning group or agreement of Section 13(d)(3) any kind with respect to any voting securities of the Exchange Act) Company, including through coordination on social media with any stockholder of the Company outside of the Stockholder Group or in connection with any election or removal contest with respect to the Common Stock (Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting, other than a “group” that includes all or some solely with members of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this AgreementStockholder Group;
(ivd) deposit any Common Stock voting securities of the Company in any voting trust or subject any Common Stock Company voting securities to any arrangement or agreement with respect to the voting of any Common Stockthereof, other than any (i) such voting trust, arrangement or agreement solely among members of the Stockholder Group, (ii) depositing securities in customary brokerage accounts, prime brokerage accounts and similar accounts and (iii) as otherwise in accordance with this Agreement;
(v) (Ae) seek representation publicly, alone or in concert with others, to amend any provision of the Governance Documents;
(f) demand an inspection of the Company’s books and records;
(g) publicly make any proposal with respect to, or make any statement or otherwise seek to encourage, advise or assist any person with respect to any proposals or statements related to: (i) any change in the composition, number or term of directors serving on the Board or the filling of any vacancies on the Board, (ii) any change in the capitalization or dividend policy or share repurchase programs or practices of the Company, (iii) any other change in the Company’s management, governance, corporate structure, business, operations, strategy, affairs or policies, (iv) the listing of a class of securities of the Company on any securities exchange, or (v) the eligibility of a class of equity securities of the Company for registration pursuant to Section 12(b) of the Exchange Act, in each case except as expressly permitted by Section 2 of this Agreement;
(h) publicly disclose any vote, delivery of consents or consent revocations, or failure to deliver consents or consent revocations, as applicable, by members of the Stockholder Group against the voting recommendations of the Board in connection with a Stockholder Meeting (other than in accordance connection with an Extraordinary Transaction, if any);
(i) initiate, make, offer, propose to effect or in any way participate, directly or indirectly, any Extraordinary Transaction or make, directly or indirectly, any proposal, either alone or in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement or disclosure regarding any such matter;
(j) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek to effect, offer or propose to effect, cause or participate in, any Extraordinary Transaction;
(k) enter into any negotiations, agreements or understandings with any Third Party with respect to any of the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action that is prohibited under this Section 1 4, or otherwise take or cause any action inconsistent with any of the foregoing;
(l) publicly make or in any way publicly advance any request or proposal that the Company or the Board amend, modify or waive any provision of this Agreement; or
(m) take any action challenging the validity or submit nominations in furtherance enforceability of a “contested solicitation” for the election this Section 4 or removal of directors of this Agreement unless the Company is challenging the validity or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 enforceability of this Agreement; provided, however, that the restrictions in this Section 4 shall not prohibit or restrict the Stockholder Group or its Representatives, or any member of the Stockholder Group or any of their respective Representatives, from (A) making any factual statement or public disclosure to the extent required by applicable legal process, subpoena or legal requirement to any governmental authority with competent jurisdiction over the party from whom information is sought (so long as such request did not arise as a result of voluntary action by the Stockholder Group or its Representatives), (B) otherwise seek making any private or confidential communication to control or influence with the managementBoard, Board any officer or policies director of the Company, other than or legal counsel, public relations advisor, or proxy solicitor of the Dolphin Director in his capacity as suchCompany that is not intended to, and would not reasonably be expected to, trigger or require any public disclosure of such communications for any of the parties, or (C) instigatetendering shares, support, encourage receiving payment for shares or assist otherwise participating in any third party to do any of transaction approved by the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during Board on the Standstill Period in support of same basis as the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders stockholders of the Company, subject to the other terms of this Agreement. Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to limit the exercise in good faith by the New Director of his or (B) other than at the direction her fiduciary duties in his or with the consent of the Board, in the Dolphin Director’s her capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
Appears in 1 contract
Sources: Cooperation Agreement (Vaxart, Inc.)
Standstill Provisions. (a) Dolphin Engine agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2017 Annual Meeting pursuant to the Company’s bylaws or (y) the date that is ninety (90) days prior to the first anniversary of the 2016 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin direction will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverEngine Members, but does not include any other entities or persons not identified on Exhibit A as Engine Members as of the date hereof); provided, however, that nothing herein shall will limit the ability of an Affiliate or Associate of Dolphin Engine to join the its respective “group” following the execution of this Agreement, so long as any such Affiliate or Associate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Engine Members and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Engine or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company’s shareholders called by 2017 Annual Meeting so long as such actions do not create a person public disclosure obligation for Engine or persons other than Dolphin for the purpose of removing or electing directors of the CompanyCompany and are undertaken on a basis reasonably designed to be confidential;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, recapitalization, restructuring, disposition or other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of business combination involving the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)encourage, offer, propose, initiate or support any other third party in any such related activity or (C) make any public statement with respect to, communication in opposition to any Company acquisition or encourage, solicit disposition activity approved by the Board;
(vi) vote for any director or negotiate with any third party with respect to, a merger, consolidation, acquisition of control directors for election to the Board other than those nominated or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving supported by the CompanyBoard;
(vii) except in accordance with Section 1, seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders (other than such encouragement, except in accordance support or influence that is consistent with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of Company’s management or the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) Board’s recommendation in connection with any such matter);
(viii) seek to call, or to request the call of, a special meeting of the Company’s shareholders called by stockholders, or make a person request for a list of the Company’s stockholders or persons other than Dolphin for the purpose of removing or electing directors any books and records of the Company; provided, however, any Engine Appointee shall have the right to request stocklist materials or other books and records of the Company in his or her capacity as a director of the Company;
(ix) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any Common Stock of the Company representing in the aggregate (among Engine and its Affiliates and Associates) in excess of 9.9% of the Company’s then outstanding Common Stock (other than securities issued or purchased by the Company pursuant to a stock split, stock dividend, stock repurchase or similar corporate action initiated by the Company with respect to any Common Stock beneficially owned by Engine Capital on the date of this Agreement);
(x) other than through open market broker sale transactions where the identity of the purchaser is unknown, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, any security of the Company or any right decoupled from such underlying security held by Engine to any third party that would to Engine’s knowledge result in such third party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest of any third party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case either (A) in a transaction approved by the Board or (B) to a third party who is entitled, and following such transaction continues to be entitled, to file statements on Schedule 13G pursuant to Rule 13d-1(b) or Rule 13d-1(c) promulgated under the Exchange Act; or
(viiixi) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), each Engine Member will be entitled to:
(i) vote its shares on any other proposal duly brought before the 2016 Annual Meeting, or otherwise vote as each Engine Member determines in its sole discretion provided that all Engine Members vote their shares in the same manner; or
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefore; provided that, as applicable, all such activity is in compliance with the requirements of this Agreement and that such disclosure is made in a consistent manner and includes all Engine Members.
(c) Nothing in this Section 2 shall be deemed to limit the exercise in good faith by an Engine Appointee of his or her fiduciary duties solely in his or her capacity as a director of the Company.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees that, from Commencing on the date of this Agreement and until the date that is ten the fifth (105th) business days prior to anniversary of the deadline for the submission date of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws this Agreement (the “Standstill Period”), neither Dolphinthe Stockholder agrees, nor any on behalf of itself and its Affiliates or Associates under its control or directionand Associates, nor that for so long as such Persons collectively Beneficially Own any Voting Securities, except pursuant to a negotiated transaction with the Stockholder approved by the board of directors of the Affiliates or Associates that control or direct Dolphin willCompany (the “Board”), the Stockholder will not (and Dolphin will cause each of such its Affiliates and Associates not to), in any manner, directly or indirectly, in any manner:
(a) make, effect, initiate, cause or participate in (i) become the beneficial owner, as such term is defined in Rule 13d-3 any acquisition of Beneficial Ownership of any securities of the Exchange Act, Company or any securities of more than 9.90% any Subsidiary or other Affiliate or Associate of the Common Stock;
Company if such acquisition would result in the Stockholder and its Affiliates and Associates collectively Beneficially Owning twenty five percent (25%) or more of the then outstanding Voting Securities, (ii) engage in any solicitation of proxies or consents or become a “participant” in a Company Acquisition Transaction, (iii) any “solicitation” of “proxies” (as such those terms are defined in Regulation 14A Rule 14a-1 of the General Rules and Regulations under the Exchange Act of proxies Act) or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support securities of the Dolphin Director Company or (including engaging in a solicitation of proxies for the election of the Dolphin Directoriv) in connection with frustrate or seek to frustrate any special meeting of the Company’s shareholders called Company Acquisition Transaction proposed or endorsed by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iiib) formrecommend, join nominate or seek to nominate any Person to the Board or otherwise act, alone or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) concert with respect others, to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, the Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors governance of the Company;
(Ac) take any action which might force the Company to make a public announcement regarding any proposal for consideration by shareholders at of the types of matters set forth in subsection (a) of this Section 4.1;
(d) request or propose that the Company (or its directors, officers, employees or agents), directly or indirectly, amend or waive any annual provision of this Section 4.1, including this subsection (d) or special meeting any provisions of shareholders Section 3 of this Agreement;
(e) demand an inspection of the Company’s books and records whether pursuant to Section 220 of the General Corporation Law of the State of Delaware or otherwise;
(f) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (Bincluding derivative actions) other than at to enforce the direction provisions of this Agreement or with any rights available to the consent of Stockholder under the Board, in Purchase Agreement and the Dolphin Director’s capacity as a director of the CompanyTransaction Documents;
(g) agree or offer to take, or with respect encourage or propose (publicly or otherwise) the taking of, any action referred to purchases of Common Stock expressly permitted by Section 2(a)(iin subsections (a), offer(b), propose(c), (d), (e) or make (f) of this Section 4.1;
(h) assist, induce or encourage any public statement with respect toother Person to take any action referred to in subsections (a), (b), (c), (d),(e) or encourage(f) of this Section 4.1;
(i) enter into any discussions, solicit negotiations, agreements, understandings or negotiate arrangements with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition taking of any securities action referred to in subsections (a), (b), (c), (d),(e) or (f) of the Company at any annual or special meeting of shareholders, except in accordance with this Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company4.1; or
(viiij) make take any request action challenging the validity or submit any proposal to waive, terminate or amend the terms enforceability of this Section 4.1 of this Agreement other than through non-public communications with unless the Company that would not be reasonably determined to trigger public disclosure obligations for any Partyis challenging the validity or enforceability of this Agreement.
Appears in 1 contract
Sources: Lock Up, Voting and Standstill Agreement (Mohawk Group Holdings, Inc.)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2022 annual meeting of the Company’s stockholders (the “2022 Annual Meeting Meeting”) pursuant to the Company’s bylaws Amended and Restated Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2021 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such Affiliates and Associates Covered Person not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents stockholder requests or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents stockholder requests (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities of the Common Stock Company (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the such “group” following the execution of this Agreement, so long as any such Affiliate agrees in writing to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or take seek or take, or knowingly encourage any person or entity to seek or take, any other action with respect to the appointment, election or removal of any directors (other than in accordance with directors, except as permitted under Section 1 of this Agreement1(a)(iii); provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2022 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving the direction Company or any of its subsidiaries, (C) knowingly solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the consent Company or any of its subsidiaries, or publicly initiate, support or knowingly encourage any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of stockholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, encourage, support or knowingly encourage or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders with respect to the appointment, election or removal of director(s), except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 and Section 2(a), Starboard shall be entitled to (i) vote all shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) subject to Section 12, disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company on any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by the New Independent Directors (or any Replacement Independent Directors, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 1 contract
Standstill Provisions. The standstill period (athe "Standstill Period") Dolphin agrees that, from begins on the date of this Agreement until and shall terminate on the Business Day immediately following the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws 's 2021 annual meeting of shareholders (the “"2021 Annual Meeting") (such date, the "Termination Date"). VCP agrees that during the Standstill Period”), neither Dolphin, it nor any of its controlling or controlled Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its controlling or controlled Affiliates and Associates not to, directly or indirectly, in any manner, alone or in concert with others:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iiia) form, join in or in any way participate in any “"partnership, limited partnership, syndicate or other group” (within the meaning of ", including, without limitation, a "group" each as defined under Section 13(d)(313(d) of the Exchange Act) Act with any person or entity other than the New Nominee, with respect to the Common Stock (other than a “group” that includes all or some any Securities of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A Company owned as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust Agreement or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement subsequently acquired in accordance with this Agreement;
(vb) except following approval of the Board, purchase or cause to be purchased or otherwise acquire (Ai) seek representation on beneficial ownership of any Common Stock or other Securities of the Board Company (other than securities issued pursuant to a plan established by the Board for members of the Board or a stock split, stock dividend or similar corporate action initiated by the Company with respect to any securities beneficially owned by VCP), if immediately after the taking of such action, VCP together with its controlled and controlling Affiliates would, in accordance with Section 1 the aggregate, beneficially own more than 19.9% of the then outstanding shares of Common Stock, or (ii) interests in any of the Company's indebtedness;
(c) make or publicly advance any request or proposal that the Company or Board amend, modify or waive any provision of this Agreement, or take any action challenging the validity or enforceability of any provisions of this Section 2 (provided, that VCP may make confidential requests to the Board to amend, modify or waive any provision of Agreement, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by VCP and is made by VCP in a manner that does not require the public disclosure thereof by the Company, VCP or any other person);
(d) acquire or submit nominations in furtherance agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of a “contested solicitation” for any of the election assets or removal of directors business of the Company or take any other action with respect rights or options to the election acquire any such assets or removal of business from any directors (person, in each case other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors Securities of the Company;
(Ae) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Companyseek, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, propose or make any public statement with respect to, or encouragesolicit, solicit negotiate with, or negotiate with provide any third party information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(viif) seek to advisedisclose publicly, encourageor privately in a manner that would reasonably require public disclosure, support any intention, plan or influence arrangement inconsistent with the foregoing; or
(g) enter into any agreement, arrangement or understanding concerning any of the foregoing (other than this Agreement) or encourage or solicit any person with respect to undertake any of the foregoing activities. Notwithstanding anything to the voting or disposition of any securities of the Company at any annual or special meeting of shareholderscontrary, except in accordance with Section 1; provided that nothing in this subsection Agreement shall prohibit Dolphin restrict (i) VCP's ability to vote, transfer or hedge any Common Stock beneficially owned by it or (ii) the New Nominee from taking any action during the Standstill Period in support his or her capacity as a director of the Dolphin Director (including engaging Company in a solicitation of proxies for the election of the Dolphin Director) in connection manner consistent with any special meeting of his or her fiduciary duties to the Company’s shareholders called , and the taking of any such action by such individuals shall not be a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms breach 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 PartyAgreement.
Appears in 1 contract
Sources: Cooperation Agreement (Net 1 Ueps Technologies Inc)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations for the 2014 2018 Annual General Meeting pursuant to the Company’s bylaws 's Memorandum and Articles of Association or (y) the date that is one hundred (100) days prior to the first anniversary of the 2017 Annual General Meeting (the “"Standstill Period”"), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “"participant” " in a “"solicitation” " (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special an extraordinary general meeting of shareholders of the Companyshareholder), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock Ordinary Shares (other than a “"group” " that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “"group” " following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock Ordinary Shares in any voting trust or subject any Common Stock Ordinary Shares to any arrangement or agreement with respect to the voting of any Common StockOrdinary Shares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “"contested solicitation” " for the appointment, election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the appointment, election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company’s shareholders called by 2018 Annual General Meeting so long as such actions do not create a person public disclosure obligation for Starboard or persons other than Dolphin for the purpose of removing or electing directors of Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard's normal practices in the Companycircumstances;
(A) make any proposal for consideration by shareholders at any annual or special extraordinary general meeting of shareholders of the CompanyCompany or through any referendum of shareholders, or (B) make any offer or proposal (with or without conditions) with respect to any merger, scheme of arrangement, takeover offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving Starboard and the direction Company, (C) affirmatively solicit a third party to make an offer or proposal (with the consent or without conditions) with respect to any merger, scheme of the Boardarrangements, in the Dolphin Director’s capacity as a director of takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, scheme of arrangement, takeover offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases the Company prior to such proposal becoming public or (E) call or seek to call an extraordinary general meeting of Common Stock expressly shareholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted by in Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special extraordinary general meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote the Ordinary Shares that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor (in each case, subject to Section 1(g)(iii)).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by an Appointed Director of such person's fiduciary duties solely in such person's capacity as a director of the Company and in a manner consistent with such person's and Starboard's obligations under this Agreement.
Appears in 1 contract
Sources: Agreement (PERRIGO Co PLC)
Standstill Provisions. (a) Dolphin a. RC Ventures agrees that, from the date of this Agreement until the earlier of (x) the date that is ten thirty (1030) business calendar days prior to the deadline for the submission of shareholder director nominations by stockholders for the 2014 Annual Meeting Company’s 2022 annual meeting of stockholders pursuant to the Company’s bylaws By-Laws or (y) the date that is one hundred twenty (120) calendar days prior to the first anniversary of the 2021 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willRC Ventures shall not, and Dolphin will shall cause each of such its Affiliates and Associates not to, in each case directly or indirectly, in any manner:
i. acquire, seek or propose (ipublicly or otherwise) become or agree to acquire, beneficial ownership, directly or indirectly and acting alone or in concert, 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, or through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in RC Ventures (together with its Affiliates and Associates) owning, controlling or otherwise having any beneficial ownership interest in or aggregate economic exposure of more than 19.9% of the outstanding shares of Common Stock; provided, however, that RC Ventures agrees that, immediately upon RC Ventures (together with its Affiliates and Associates) acquiring beneficial ownership, or becoming the beneficial owner, of 20.0% or more of the outstanding shares of Common Stock without prior Board approval, (A) RC Ventures (together with its Affiliates and Associates, as such term is applicable) shall be considered an “interested stockholder” of the Company as defined in Rule 13d-3 Delaware General Corporation Law § 203 (“DGCL 203”) (but, for this purpose, replacing 15% in such definition with 20.0%) as if the 203 Approval referred to in Section 3 had not been granted and (B) the Company shall be subject to the restrictions on any business combination (as defined in DGCL 203) with RC Ventures (together with its Affiliates and Associates, as applicable) as an “interested stockholder” enumerated in DGCL 203 for a period of three years following such time RC Ventures (together with its Affiliates and Associates) came to beneficially own 20.0% or more of the Exchange Act, outstanding shares of more than 9.90% of the Common Stock;
(ii) . make, engage in or in any way participate in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents to vote (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders stockholders), or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities 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), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) . form, join join, or in any way knowingly participate or enter into any discussions or negotiations with any person not a party to this Agreement to participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of RC Ventures, but does not include any other entities or persons that are not identified on Exhibit A members of RC Ventures as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin RC Ventures to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) . agree, attempt, seek or propose to deposit any shares of Common Stock in any voting trust or similar arrangement or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common StockStock (including by granting any proxy, consent or other authority to vote), other than any such voting trust, arrangement or agreement solely among the members of RC Ventures and otherwise in accordance with this Agreement;
(vv. seek or submit, or knowingly encourage any person to seek or submit, nomination(s) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than except as specifically permitted in accordance with Section 1 of this Agreement1), (B) otherwise seek in each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent RC Ventures or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company’s shareholders called by 2022 Annual Meeting so long as such actions do not create a person public disclosure obligation for RC Ventures or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in and are undertaken on a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.confidential basis;
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees that, from The standstill period (the “Standstill Period”) begins on the date of this Agreement and shall extend until the date that is ten thirty (1030) business days prior to the deadline for the submission of shareholder stockholder nominations for directors for the 2014 2021 Annual Meeting pursuant to the Company’s bylaws Fourth Amended and Restated By-Laws (the “By-Laws”). Lancer Capital hereby agrees that during the Standstill Period”), neither Dolphin, Lancer Capital nor any of its Affiliates or and Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin they will cause each of such their Affiliates and Associates not to, as applicable, directly or indirectly, alone or in concert with others, in any manner, but expressly subject, in each case, to the provisions of Section 3(b) below:
(i) become fail to comply with all applicable laws and regulatory rules and obtain all applicable regulatory approvals if and when acquiring, or offering, seeking or agreeing to acquire, by purchase or otherwise, or directing any third party in the beneficial owneracquisition of, as such term is defined any Common Stock or any securities convertible or exchangeable into or exercisable for Common Stock (collectively, “Company Securities”), or rights or options to acquire any Company Securities, or engaging in Rule 13d-3 any swap instrument or derivative hedging transactions or other derivative agreements of the Exchange Act, of more than 9.90% of the Common Stockany nature with respect to Company Securities;
(ii) engage in a “solicitation” of “proxies” (as such terms are defined under the Exchange Act), votes or written consents of stockholders or security holders with respect to, or from the holders of, the Common Stock (including a “withhold” or similar campaign), for any solicitation purpose, including, without limitation, the election or appointment of proxies individuals to the Board or consents to approve or vote in favor or against stockholder proposals, resolutions or motions, or become a “participant” (as such term is defined in a Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any contested “solicitation” of proxies, votes or written consents for any purpose, including, without limitation, the election or appointment of directors with respect to the Company (as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents Act) (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period a “solicitation” or acting as a “participant” in support of the Dolphin Director (including engaging in a solicitation of proxies for the election nominees of the Dolphin Director) Board at any stockholder meeting or providing such encouragement, advice or influence that is consistent with either the Board’s or Company management’s recommendation in connection with any special meeting of the Company’s shareholders called by a person such director nominees or persons other than Dolphin for the purpose of removing proposals, resolutions or electing directors of the Companymotions, pursuant to this Agreement or otherwise);
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons or entities identified in Lancer Capital’s Schedule 13D, filed with the SEC on Exhibit A and the Board ObserverApril 23, but does not include any other entities or persons not identified on Exhibit A as of the date hereof2020); provided, however, that nothing herein shall limit the ability of an Affiliate Affiliate, a family member and an estate planning vehicle formed for any of Dolphin the foregoing, of Lancer Capital to join the a “group” with such parties, as applicable, following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) agree, attempt, seek or propose to deposit any shares of Common Stock in any voting trust or similar arrangement or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among Lancer Capital and its Affiliates or Associates and otherwise in accordance with this Agreement;
(v) (Aseek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors directors, in each case in opposition to the recommendation of the Board;
(other than in accordance with Section 1 of this Agreement), vi) (BA) otherwise seek present or make to control or influence the management, Board or policies stockholders of the Company, other than or knowingly encourage any person to present or make to the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting stockholders of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make , any proposal or other matter for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company or through action by written consent, (B) make any public offer or proposal to the Company (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its significant subsidiaries, or make any such offer privately to the Company which private offer would reasonably be expected to require the Company or the Parties to make public disclosure (of any kind), (C) affirmatively solicit a third party to make any public or private offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any third party in making such an offer or proposal, (BD) other than at the direction publicly comment on any third party proposal regarding any merger, tender (or with the consent of the Boardexchange) offer, in the Dolphin Director’s capacity as a director of the Companyacquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases the Company or any of Common Stock expressly permitted its significant subsidiaries by Section 2(a)(i), offer, propose, such third party prior to such proposal becoming public or (E) make any private proposal to the Company that would reasonably be expected to require the Company or the Parties to make public statement with respect to, or encourage, solicit or negotiate with disclosure (of any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companykind);
(vii) seek make any public disclosure, communication, announcement or statement regarding any intent, purpose, plan, or proposal with respect to (A) controlling, changing or influencing the Board, including, without limitation, any public disclosure, communication, announcement or statement regarding any intent, purpose, plan, or proposal relating to any change in the number of directors or the filling of any vacancies on the Board, (B) any material change in the capitalization, dividend policy, share repurchase programs and practices or capital allocation programs and practices of the Company, (C) relating to any material change in the Company’s management, compensation or corporate structure, (D) relating to any waiver, amendment or modification to the Company’s Second Amended and Restated Certificate of Incorporation, as amended (the “Charter”) or to the By-Laws, (E) causing any securities of the Company to be delisted or (F) causing any equity securities of the Company to become eligible for termination of registration;
(viii) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(ix) subject to Section 3(b) below, advise, knowingly encourage, knowingly support or knowingly influence any person or entity, in Lancer Capital’s capacity as a stockholder of the Company, with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders with respect to the appointment, election or removal of any director(s), except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking ;
(x) make any action during the Standstill Period in support request for stockholder list materials or other books and records of the Dolphin Director (including engaging Company in Lancer Capital’s capacity as a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting stockholder of the Company’s shareholders called ;
(xi) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its or their current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by a person or persons other than Dolphin this Section 3; provided, however, that for the purpose avoidance of removing doubt the foregoing shall not prevent Lancer Capital and its Affiliates or electing directors Associates from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company; orCompany against Lancer Capital, its Affiliates or Associates, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) complying with a validly issued legal process or (E) exercising statutory appraisal, dissenters or similar rights under applicable law;
(viiixii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party; or
(xiii) disclose any intention, plan or arrangement inconsistent with the provisions of this Section 2.
(b) Notwithstanding the foregoing, nothing in this Agreement shall prohibit or restrict Lancer Capital from: (A) communicating privately with the Board or any of the Company’s officers regarding any matter in a manner that does not otherwise violate this Section 3, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (B) communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Section 3, and (C) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over Lancer Capital or any of its respective Affiliates or Associates; provided that a breach by Lancer Capital of this Agreement is not the cause of the applicable requirement. Furthermore, nothing in this Agreement shall be deemed to restrict in any way the ability of M▇. ▇▇▇▇▇▇, acting in his capacity as a director of the Company, from exercising any of his rights, powers and privileges as a director, from fulfilling his statutory and fiduciary duties as a director, or otherwise exercising his authority as a director pursuant to the Charter, the By-Laws and/or any resolution of the Board or a committee thereof.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Each Investor agrees that, that from the date of this Agreement until the date that is ten (10) business days prior to expiration of the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates direction or Associates that control or direct Dolphin its Investor Representatives (as defined below) will, and Dolphin each Investor will cause each of such Affiliates its Affiliates, Associates and Associates Investor Representatives not to, directly or indirectly, in any manner, alone or in concert with others:
(i) become submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the beneficial owner, as such term is defined in Rule 13d-3 of SEC the Exchange ActAct or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for election to the Board (including, without limitation, by way of more Rule 14a-11 of Regulation 14A), other than 9.90% of the Common Stockas expressly permitted by Section 1 hereof;
(ii) solicit, or knowingly encourage or in any way engage in any solicitation of of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to securities of the Common Stock, Company and other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period solicitations or acting as a “participant” in support of the Dolphin Director (including engaging in a solicitation of proxies for the election recommendations of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyBoard;
(iii) formadvise, join knowingly encourage, support or in influence any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) person with respect to the Common Stock (other than a “group” that includes all voting or some disposition of any securities of the persons identified on Exhibit A and the Board ObserverCompany at any annual or special meeting of stockholders, but does not include any other entities except as expressly permitted in Section 1, or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin seek to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreementdo so;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Affiliates or Associates of the Investors and otherwise in accordance with this Agreement;
(v) (A) seek seek, alone or in concert with others, representation on the Board Board, except as expressly permitted in Section 1;
(other than in accordance with Section 1 of this Agreementvi) seek or knowingly encourage any person to submit nominations in furtherance of a “contested solicitation” or take other applicable action for the election or removal of directors with respect to the Company;
(vii) form or join in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Company Exchange Act, with respect to any Common Stock, or take any other action with respect that would divest the Investors of the ability to the election vote or removal cause to be voted its shares of any directors (other than Common Stock in accordance with Section 1 of this Agreement), ;
(Bviii) otherwise act alone or in concert with others to (A) control or seek to control the management or influence the management, Board or policies of the Company, other than the Dolphin Director (excluding actions (x) expressly permitted in Section 1 and (y) taken by an Investor Nominee in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s her capacity as a director of the Company in the exercise of his or her fiduciary duties) or (B) seek to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or Amended and Restated By-Laws (the “By-Laws”), or other actions, that may impede or facilitate the acquisition of control of the Company by any person;
(ix) with respect to purchases the Company or the Common Stock, make any communication or announcement (other than in the ordinary course of its business on a confidential basis to their investors) stating how its shares of Common Stock expressly permitted by Section 2(a)(i), offer, proposewill be voted, or the reasons therefor or otherwise communicate pursuant to Rule 14a–1(l)(2)(iv) under the Exchange Act;
(x) make any public statement or public disclosure regarding any intent, purpose, plan or proposal with respect toto (i) the Company, the Board (including, without limitation, any change in structure, number or encouragecomposition), solicit the Company’s management (including, without limitation, any change in management), policies or negotiate with affairs or any third party with respect toof its securities or assets, a (ii) any merger, consolidation, acquisition of control or other control, business combination, tender or exchange offer, purchase, sale or transfer of the Company or its subsidiaries, businesses, assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend dividend, share repurchase or similar other extraordinary transaction involving (each such merger or other transaction in this clause (ii), an “Extraordinary Transaction”); provided, that the Companyrestrictions in this sub clause (ii) shall not apply in the event that the Company solicits proxies with respect to an Extraordinary Transaction, or (iii) this Agreement, that is inconsistent with the provisions of this Agreement, including, without limitation, with respect to clauses (i), (ii) and (iii) any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(viixi) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any shares of Common Stock or other securities issued by the Company, or any securities convertible into or exchangeable for Common Stock, which would result in the ownership, control or other beneficial ownership interest in more than 9.99% of the then-outstanding shares of the Common Stock in the aggregate among the Investors;
(xii) acquire or agree, offer, seek or propose to adviseacquire, encourageor cause to be acquired, support ownership (including beneficial ownership) of any of the assets or influence business of the Company or any rights or options to acquire any such assets or business from any person;
(xiii) other than at the direction of the Board or any committee thereof, seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to to, any Extraordinary Transaction involving the voting Company, its subsidiaries or disposition of its business, assets or securities, or any securities change in structure, number or composition of the Company at any annual Board or special meeting of shareholders, except change in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support management of the Dolphin Director (including engaging in Company, whether or not any such transaction or change involves a solicitation change of proxies for the election control of the Dolphin DirectorCompany, in each case;
(xiv) enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or knowingly encourage, any other person in connection with any special meeting of the Company’s shareholders called by a foregoing, or make any investment in or enter into any arrangement with any other person that engages, or persons other than Dolphin for the purpose of removing offers or electing directors proposes to engage, in any of the Companyforegoing;
(xv) otherwise take, or solicit, cause or knowingly encourage others to take, any action inconsistent with any of the foregoing; or
(viiixvi) take any action challenging the validity or enforceability of this Section 2 or this Agreement, or request the Company or the Board to amend or waive any provision of this Section 2 (provided that the Investors may make confidential requests to the Board to amend or waive any provision of this Section 2, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure thereof by the Company, Investors or submit any proposal to waive, terminate or amend the terms other person).
(b) For purposes of this Agreement other than through nonthe term “Standstill Period” shall mean from the date of this Agreement until the earlier of (i) the date that is twenty-public communications with five (25) business days prior to the deadline for the submission of stockholder nominations for the 2018 Annual Meeting pursuant to the By-Laws and (ii) the termination of this Agreement pursuant to Section 8(b) due to a material breach of this Agreement by the Company. In the event that the Company does not wish to nominate the Investor Nominees for re-election at the Company’s 2018 Annual Meeting, the Company shall provide written notice to the Investors no later than thirty (30) days prior to the initial date on which the submission of stockholder nominations for the 2018 Annual Meeting are permitted pursuant to the By-Laws. For the avoidance of doubt, and notwithstanding anything herein to the contrary, nothing in this Section 2 or elsewhere in this Agreement shall be deemed to in any way restrict, limit or prevent (i) the Investors from responding to or complying with a validly issued legal process that would the Investors did not be reasonably determined initiate, encourage, aid or abet; (ii) the Investors from communicating, on a confidential basis, with their attorneys, accountants or financial advisors; (iii) the Investors from (A) bringing litigation, in good faith, to trigger public disclosure obligations for enforce the provisions of this Agreement or (B) making counterclaims, in good faith, with respect to any Partyproceeding initiated by, or on behalf of, the Company against the Investors with respect to this Agreement or the Investors from selling or tendering any shares of the Company.
Appears in 1 contract
Sources: Cooperation Agreement (Cruiser Capital Advisors, LLC)
Standstill Provisions. (a) Dolphin WW Investors agrees that, at all times from the date of this Agreement until the earlier of (A) such time as the WW Designee is removed as a member of the Board and the Company fails to seat a Replacement Manager in breach of Section 1(a), (B) Winthrop REIT Advisors LLC is replaced as the Company’s advisor and (C) the later of (i) the date that is ten 14 months after the date hereof and (10ii) business days prior to such time as a WW Designee is no longer a member of the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws Board (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willshall, and Dolphin will it shall cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(iia) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyunitholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiib) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock Units (other than a “group” that includes all or some of the entities or persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin WW Investors to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivc) deposit any Common Stock Units in any voting trust or subject any Common Stock Units to any arrangement or agreement with respect to the voting of any Common StockUnits, other than any such voting trust, arrangement or agreement solely among the members of WW Investors and otherwise in accordance with this Agreement;
(vd) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of managers with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companymanagers;
(Ae) (i) make any proposal for consideration by shareholders unitholders at any annual or special meeting of shareholders unitholders of the Company, (ii) make any offer or proposal (Bwith or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other than at business combination involving WW Investors and the direction Company, (iii) affirmatively solicit a third party, on an unsolicited basis, to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (iv) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other business combination with respect to purchases of Common Stock expressly permitted the Company by Section 2(a)(i), offer, proposesuch third party prior to such proposal becoming public, or make any public statement with respect to, (v) call or encourage, solicit or negotiate with any third party with respect to, seek to call a merger, consolidation, acquisition meeting of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companyunitholders;
(viif) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(g) seek to advise, encouragesupport, support influence or influence knowingly encourage any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersunitholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking ;
(h) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any action during the Standstill Period in support voting units of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection Company that, together with any special meeting voting units beneficially owned thereby, represents in the aggregate in excess of 4.9% of the Company’s shareholders called by outstanding voting units;
(i) institute any litigation against the Company, its managers or its officers, make any “books and records” demands against the Company or make application or demand to a court or other person or persons entity for an inspection, investigation or examination of the Company or its subsidiaries or Affiliates; provided, however, that nothing shall prevent WW Investors from bringing litigation to enforce the provisions of this Agreement;
(j) enter into or maintain any economic, compensatory, pecuniary or other than Dolphin arrangements with any manager or nominees for the purpose of removing or electing directors manager of the Company; or, other than the WW Designee;
(viiik) make any request or submit any proposal to waive, terminate or 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; or
(l) enter into any negotiations, discussions, agreement, arrangement or understanding with any person or entity concerning any of the foregoing (other than this Agreement) or encourage or solicit any person or entity to undertake any of the foregoing activities.
Appears in 1 contract
Sources: Manager Designation Agreement (New York REIT Liquidating LLC)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2023 Annual Meeting pursuant to the Company’s bylaws By-Laws or (y) the date that is ninety (90) days prior to the first anniversary of the 2022 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such Affiliates and Associates Covered Person not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks seek to call a special meeting of shareholders of the Companystockholders, or any action by written consent), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities of the Common Stock Company (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound in writing by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock Shares in any voting trust or subject any Common Stock Shares to any arrangement or agreement with respect to the voting of any Common StockShares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations submit, or knowingly encourage any person or entity to seek or submit, nomination(s), proxies or consents in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than in accordance with directors, except as permitted under Section 1 of this Agreement1(a); provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2023 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the CompanyCompany or through any stockholder action by written consent, (B) make any offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, or knowingly publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party (provided that this clause (D) shall not prevent such public comment after such proposal has become generally known to the public other than as a result of a disclosure by Starboard), or (BE) other than at the direction call or seek to call a special meeting of stockholders, or initiate or participate in any stockholder action by written consent;
(vi) seek, alone or in concert with the consent of others, representation on the Board, except as specifically provided in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders or any stockholder action by written consent, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote the Common Shares that it beneficially owns as it determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company on any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by an Agreed Appointee or a Replacement Director of such persons’ fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
Appears in 1 contract
Sources: Shareholder Agreement (Humana Inc)
Standstill Provisions. (a) Dolphin The Investor agrees that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws June 30, 2026 (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special general meeting of shareholders or act by written consent of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock Shares (other than a “group” that includes all or some solely with Affiliates of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereofInvestor thereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock Shares in any voting trust or subject any Common Stock Shares to any arrangement or agreement (other than customary brokerage accounts, margin accounts, prime brokerage accounts and the like) with respect to the voting of any Common StockShares, other than any such voting trust, arrangement or agreement solely among the Investor and one or more of its Affiliates and granting proxies in accordance with this Agreementsolicitations approved by the Board;
(viv) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual general or special general meeting of shareholders of the Company, or (B) publicly make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other than at business combination involving the direction Investor (or with the consent of the Board, in the Dolphin Director’s capacity as a director of its Affiliates) and the Company, or (C) affirmatively and knowingly solicit a third party, on an unsolicited basis, to make an offer or proposal (with or without conditions) with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidationacquisition, acquisition of control recapitalization, restructuring, disposition or other business combinationcombination involving the Company (an “Extraordinary Transaction”), tender it being understood that the foregoing shall not restrict the Investor or exchange offerits Affiliates from privately making any proposal to the Company or the Board with respect to an Extraordinary Transaction or tendering shares, purchasereceiving consideration or other payment for shares, sale or transfer otherwise participating in any Extraordinary Transaction on the same basis as other shareholders of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(viivi) seek to advise, encourage, support knowingly encourage or influence advise a third party or knowingly assist a third party in encouraging or advising any other person with respect to (A) the voting giving or disposition withholding of any securities proxy relating to, or other authority to vote, any Common Shares or (B) conducting any type of referendum relating to the Company (other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter);
(vii) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1 of this Agreement;
(viii) make any request for shareholder lists or other books and records of the Company at or any annual of its subsidiaries under any statutory or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support regulatory provisions providing for shareholder access to books and records of the Dolphin Director Company or its Affiliates;
(including engaging in a solicitation of proxies for the election of the Dolphin Directorix) except as required by law, fiduciary duties or in connection with any compliance, governmental or regulatory legal process, institute, solicit or join as a party any litigation, arbitration or other proceeding against the Company or any of its subsidiaries or any of its or their respective current or former directors or officers in their capacities as such (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing shall not prevent the Investor or its Affiliates from (A) bringing litigation against the Company or any of its subsidiaries or any of its or their respective current or former directors or officers to enforce any provision of this Agreement or any other agreement between the Investor (or any Affiliate thereof) and the Company or any of its subsidiaries, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or any of its subsidiaries or any of its or their respective current or former directors or officers against the Investor or any Affiliate thereof, (C) exercising statutory appraisal rights, (D) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or (E) responding to or complying with validly issued legal process; or
(x) take any action in furtherance of (i) calling a special general meeting of the Company’s shareholders called of the Company or (ii) acting by a person or persons other than Dolphin for written consent of the purpose of removing or electing directors shareholders of the Company; provided, that, with respect to any action by written consent of the shareholders of the Company, the Investor shall refrain from executing any such written consent or taking any other action in connection therewith; or
(viiixi) make any request or submit any proposal to waive, terminate amend or amend waive the terms of this Agreement or the Investor and Registration Rights Agreement, other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party. Notwithstanding the foregoing or anything else in this Agreement to the contrary, the restrictions in this Section 2 shall terminate automatically upon the earliest of the following: (A) any material breach of this Agreement by the Company upon ten (10) business days’ written notice by the Investor to the Company if such breach has not been cured within such notice period; (B) the Company’s entry during the Standstill Period into a definitive agreement with respect to any Extraordinary Transaction that requires or contemplates the approval by the shareholders of the Company of such Extraordinary Transaction or any component thereof; and (C) the commencement of any tender or exchange offer by any person or group which, if consummated, would constitute an Extraordinary Transaction. Notwithstanding the foregoing or anything else in this Agreement to the contrary, nothing in this Agreement (including but not limited to the restrictions in this Section 2) will prohibit or restrict the Investor or any of its Affiliates from (A) making any public or private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or any third party, (B) complying with any law, fiduciary duty, subpoena or other legal process or responding to a request for information from any governmental authority or arbitration tribunal with jurisdiction over such person from whom information is sought, (C) interacting with and making disclosures or communications to the investors in any funds, vehicles, other clients or accounts managed or advised by the Investor or any Affiliate thereof, (D) exercising any rights under or expressly permitted by this Agreement, the Investor and Registration Rights Agreement or any other agreement with the Company or any of its subsidiaries, (F) privately communicating with the Board or the Company’s senior executives regarding any matter or (G) taking any actions taken by any Affiliate of the Investor in his or her capacity as a director of the Company or from complying with his or her fiduciary duties or other legal obligations while acting in such capacity as a director of the Company.
Appears in 1 contract
Sources: Cooperation Agreement (Pangaea Logistics Solutions Ltd.)
Standstill Provisions. (a) Dolphin M▇▇▇▇ agrees that, from the date of this Agreement until the earlier of (i) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations for the 2014 2027 Annual Meeting pursuant to the Company’s bylaws Bylaws and (ii) ninety (90) days prior to the anniversary of the date on which the Company first mailed its proxy materials for the 2026 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any and (iii) the announcement of its Affiliates or Associates under its control or direction, nor any an Extraordinary Transaction the completion of which requires the approval of the Affiliates or Associates that control or direct Dolphin willCompany’s shareholders, Maran shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial ownerinitiate, as such term is defined encourage or participate in Rule 13d-3 any “vote no,” “withhold” or similar campaign with respect to any annual or special meeting of the Exchange Act, of more than 9.90% of the Common StockCompany’s shareholders or any similar shareholder consent solicitation process;
(ii) engage in or encourage any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyconsents), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) form, join join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A members of Maran and the Board ObserverM▇. ▇▇▇▇▇▇▇▇▇, but does not include any other entities or persons that are not identified on Exhibit A M▇. ▇▇▇▇▇▇▇▇▇ or members of Maran as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Maran to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Maran and otherwise in accordance with this Agreement;
(v) (Aseek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Maran or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2027 Annual Meeting so long as such actions do not create a public disclosure obligation for Maran or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with M▇▇▇▇’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction make any offer or proposal (with the or without conditions) with respect to any Extraordinary Transaction, (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, (D) publicly comment on any third party proposal regarding any Extraordinary Transaction by such third party, (E) call, encourage or seek to call a special meeting of shareholders or (F) initiate or participate in any action by written consent of the Board, Company’s shareholders (other than by providing a consent in accordance with the Dolphin Director’s capacity as a director recommendations of the Company, or with respect Board pursuant to purchases of Common Stock expressly permitted a solicitation commenced by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company);
(vii) seek seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(viii) acquire securities of the Company or Derivative Instruments relating to such securities that would result in Maran in the aggregate owning, controlling or otherwise having beneficial or other ownership interest of, and/or Derivative Instruments relating to, more than 17.2% of the then-outstanding shares of Common Stock;
(ix) advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, shareholders or any action by written consent in a manner inconsistent with the recommendations of the Board except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or;
(viiix) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party;
(xi) institute or join any litigation, arbitration or other proceeding (including any derivative action) against the Company or its directors or officers, except that the foregoing will not prevent Maran from (i) bringing litigation to enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against Maran; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or (v) responding to or complying with a validly issued legal process; or
(xii) publicly or privately encourage or support any other shareholder, person or entity to take any of the actions described in this Section 2(a).
(b) Except as expressly provided in Section 1 or Section 2(a), Maran shall be entitled to vote any shares of Common Stock that it beneficially owns as Maran determines in its sole discretion.
(c) Nothing in Section 2(a) will prohibit or restrict Maran from (A) communicating privately with the Board or any officer or director of Company regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, subject in any case to any confidentiality obligations to Company of any such director or officer or (B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over Maran, but only if a breach by Maran of this Agreement is not the cause of the applicable requirement. For the avoidance of doubt, subject to applicable law, M▇▇▇▇ will not be prohibited from communicating privately with shareholders of the Company and others in a manner that does not otherwise violate this Section 2.
Appears in 1 contract
Sources: Cooperation Agreement (Maran Capital Management, LLC)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations for directors for the 2014 2021 Annual Meeting pursuant to the Company’s bylaws Third Amended and Restated Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2020 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons or entities identified on Exhibit A and the Board Observerattached hereto, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among Starboard, its Affiliates or Associates and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2021 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving the direction Company or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the consent Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersshareholders with respect to the appointment, election or removal of director(s), except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor (in each case, subject to Section 1(c)(iii)).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by any Starboard Independent Appointee (or a Starboard Replacement Director, if applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees that, from During the date of this Agreement until the date that is ten Standstill Period (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”as defined below), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willInvestors will not, and Dolphin will cause each of such its controlled Affiliates not to, and Associates will use its reasonable best efforts to cause each of its other Affiliates (as defined below) not to, directly or indirectly, in any manner:
(i) become the beneficial owneract in concert with any other person or Group (as defined below) by becoming a member of a 13D Group (as defined below), other than any 13D Group comprised exclusively of Investors and one or more of its Affiliates (as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stockbelow);
(ii) engage sell, except in compliance with the Act, pledge, encumber or otherwise transfer ("Transfer") any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, Orbital Stock to any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreementperson; provided that nothing in this subsection SECTION 4.3 shall not prohibit Dolphin from taking any action during Transfers (A) between the Standstill Period in support Investors and an Affiliate of the Dolphin Director Investors, (including engaging B) between one or more Affiliates of the Investors, (C) in any transaction in compliance with Rule 144 under the Act or any successor rule or regulation, (D) in a solicitation of proxies for public offering, registered under the election Act, or (E) in a transaction exempt from the registration requirements of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyAct;
(iii) formpurchase or otherwise acquire or offer or agree to acquire, join directly or in indirectly, any way participate in Orbital Stock or other capital stock, or securities convertible into or exchangeable for capital stock, of Orbital if, after giving effect to such purchase or acquisition, the Investors and its Affiliates (and any “group” persons that are members of a 13D Group of which the Investors or any of its Affiliates may be a member, notwithstanding the provisions of clause (within the meaning of Section 13(d)(3i) above) collectively would Beneficially Own (as defined below) more than 14.9% of the outstanding capital stock of Orbital; provided that the Investors shall not be deemed to have breached this covenant as a result of (A) the exercise of Exchange Act) with respect Rights pursuant to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long (B) a decrease in the aggregate number of shares of Orbital Stock outstanding, (C) as any such Affiliate agrees to be bound a result of the acquisition of capital stock of Orbital issued as dividends or as a result of stock splits and similar reclassifications of shares held by the terms Investors or any of its Affiliates at the time of such dividend, split or reclassification, or (D) corporate action taken solely by Orbital and conditions not caused by any action taken by the Investors or any of its Affiliates, provided that neither the Investors nor any of its Affiliates shall thereafter acquire any capital stock of Orbital otherwise than in compliance with this AgreementSECTION 4.3(a)(III);
(iv) deposit make any Common Stock in any voting trust proposal or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as suchpublic announcement relating to, or (C) instigate, supportsolicit, encourage or assist any third party propose to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit effect or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolutionother business combination, liquidation, reorganization, change in capital structure, recapitalization, dividend sale of Orbital or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; all or
(viii) make any request or submit any proposal to waive, terminate or 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.
Appears in 1 contract
Sources: Exchange and Registration Rights Agreement (Orbital Sciences Corp /De/)
Standstill Provisions. (a) Dolphin agrees Each Stockholder agrees, severally and not jointly, that, from the date of this Agreement until the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations stockholder proposals for the 2014 Annual Meeting pursuant to 2024 annual meeting of the Company’s bylaws stockholders pursuant to Section 2.3 of the Company’s Amended and Restated Bylaws (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willsuch Stockholder shall not, and Dolphin will shall cause each of such Affiliates his, her or its Affiliates, Associates and Associates Representatives (as defined below) (in their capacity as Representatives) not to, in each case directly or indirectly, in any manner:
(i) become the purchase or cause to be purchased or otherwise acquire or agree or offer to acquire beneficial owner, as such term is defined ownership of or an economic interest in Rule 13d-3 any equity or other voting securities of the Exchange Act, Company (other than pursuant to the vesting of more than 9.90% Company equity awards granted to such Stockholder prior to the date of the Common Stockthis Agreement);
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, any equity or other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors voting securities of the Company;
(iii) form, join join, or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (any equity or other than a “group” that includes all or some voting securities of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this AgreementCompany;
(iv) deposit any shares of Common Stock or other voting securities of the Company in any voting trust or subject any shares of Common Stock or other voting securities of the Company to any arrangement or agreement with respect to the voting of any shares of Common Stock, Stock or other than any such voting trust, arrangement or agreement in accordance with this Agreementsecurities of the Company;
(v) (Aseek or submit, or encourage any person or entity to seek or submit, nomination(s) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the appointment, election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, supportinitiate, encourage or assist participate in any third party “vote no,” “withhold” or similar campaign with respect to do any of the actions set forth in clause (A) annual or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companystockholders;
(vi) (A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, or (B) other than at the direction make any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases any acquisition of Common Stock expressly permitted by Section 2(a)(i)securities or any material assets or business of the Company or its subsidiaries or any merger, tender (or exchange) offer, proposeacquisition, recapitalization, restructuring, disposition, capital raise or other business combination involving the Company or its subsidiaries, (C) solicit a third party to make any public statement an offer or proposal (with or without conditions) with respect toto any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or its subsidiaries, or encourage, solicit initiate or negotiate with support any third party with respect toin making such an offer or proposal, a (D) publicly comment on any merger, consolidationtender (or exchange) offer, acquisition of control acquisition, recapitalization, restructuring, disposition, capital raise or other business combinationcombination with respect to the Company or its subsidiaries or any proposal with respect thereto, or participate in, interfere with, make any statement or communication, or submit or file any comment letter or other document to or with any governmental entity or regulatory authority or other person regarding any regulatory process in which the Company or any of its subsidiaries is involved, including in connection with any merger, tender (or exchange exchange) offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structureacquisition, recapitalization, dividend restructuring, disposition, capital raise or similar transaction involving other business combination with respect to the CompanyCompany or its subsidiaries or (E) call or seek to call a special meeting of stockholders;
(vii) seek seek, alone or in concert with others, representation on the Board;
(viii) make any request for a list of the Company’s stockholders or other books and records of the Company or its subsidiaries, including pursuant to Section 220 of the Delaware General Corporation Law or any other similar applicable law;
(ix) engage in any short sale of or hold a short position in securities of the Company, whether through a cash settled put option or other derivative security, contract or instrument, through swap or hedging transactions or otherwise, or engage in any transaction in which any Stockholder in any way seeks to profit through a decline in the price of the Company’s securities;
(x) advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; orstockholders;
(viiixi) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement or to seek a waiver of the terms hereof other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party; or
(xii) enter into any discussions, negotiations, agreements, arrangements or understandings with any person with respect to any of the foregoing or advise, assist, encourage or seek to persuade any person to take any action with respect to any of the foregoing.
(b) Each Stockholder shall comply, and shall cause each of his, her or its Affiliates, Associates and Representatives, to comply with the terms of this Agreement and shall be responsible for any breach of this Agreement by any of the foregoing persons. As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act and shall include all persons or entities that at any time during the term of this Agreement become Affiliates or Associates of any person or entity referred to in this Agreement, and the term “person” shall have the meaning set forth in the Exchange Act. For the avoidance of doubt, a “family member” of a person, as defined in Nasdaq Rule 5605(a)(2), shall be considered an Affiliate of such person.
Appears in 1 contract
Sources: Shareholder Agreement
Standstill Provisions. (a) Dolphin agrees that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws The standstill period (the “Standstill Period”)) begins on the date of this Agreement and shall extend through and shall include the 2018 Annual Meeting, provided, however, that if the 2018 Annual Meeting has not occurred by December 31, 2018, the Standstill Period shall terminate as of such date. The Engaged Group agrees that during the Standstill Period, neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner, alone or in concert with others:
(ia) become the beneficial ownersolicit, as such term is defined or encourage or in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) any way engage in any solicitation of of, any proxies or consents or otherwise become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act), directly or indirectly, of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support Securities of the Dolphin Director (including engaging Company in a solicitation of proxies for opposition to the election recommendation or proposal of the Dolphin Director) in connection with Board, or recommend or request or induce or attempt to induce any special meeting of the Company’s shareholders called by a other person to take any such actions, or persons seek to advise, encourage or influence any other than Dolphin for the purpose of removing or electing directors of the Company;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) person with respect to the Common Stock voting of the Securities of the Company (including any withholding from voting) or grant a proxy with respect to voting of any Securities of the Company or other voting securities to any person other than a “group” that includes all or some of the persons identified on Exhibit A and to the Board Observer, but does not include any other entities or persons not identified on Exhibit A appointed as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound proxies by the terms and conditions of this AgreementBoard;
(ivb) advise, knowingly encourage, or instruct any person with respect to any of the matters covered by this Section 2 at any annual or special meeting of stockholders;
(c) agree or propose to deposit any Common Stock Securities of the Company in any voting trust or similar arrangement, or subject any Common Stock Securities of the Company to any arrangement or agreement with respect to the voting of any Common Stockthereof (including but not limited to a voting agreement or pooling arrangement), other than any such voting trust, arrangement or agreement solely among the Engaged Group or its Affiliates which is otherwise constructed in accordance with this Agreement;
(v) (Ad) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other applicable action for the election or removal of directors with respect to the Company;
(e) form, join in or in any way participate in any “partnership, limited partnership, syndicate or other group”, including, without limitation, a “group” each as defined under Section 13(d) of the Exchange Act with any person who is not a member of the Engaged Group or a New Nominee (any such person, a “Third Party”), with respect to any Securities of the Company or take any other action that would divest the Engaged Group of the ability to vote or cause to be voted any shares of Common Stock (or interest in such shares) owned as of the date of this Agreement or subsequently acquired in accordance with respect this Agreement;
(f) (i) call or seek to call or request the election call of any meeting of stockholders, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Board, except as specifically set forth in Section 1, (iii) seek the removal of any directors (other than member of the Board, except as specifically set forth in accordance with Section 1 of this Agreement)1, (Biv) solicit consents from stockholders or otherwise act or seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as suchact by written consent, or (Cv) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in make a solicitation of proxies request for the election of the Dolphin Director) in connection with any special meeting a list of the Company’s shareholders called by a person stockholders or persons other than Dolphin for the purpose of removing or electing directors any books and records of the Company;
(Ag) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent except following unanimous approval of the Board, purchase or cause to be purchased or otherwise acquire (i) beneficial ownership of any Common Stock or other Securities of the Company (other than securities issued pursuant to a plan established by the Board for members of the Board or a stock split, stock dividend or similar corporate action initiated by the Company with respect to any securities beneficially owned by the members of the Engaged Group or its Affiliates), if immediately after the taking of such action, the Engaged Group together with its Affiliates would, in the Dolphin Director’s capacity as a director aggregate, beneficially own more than 14.9% of the then outstanding shares of Common Stock, or (ii) interests in any of the Company’s indebtedness;
(h) unless the Company is in material breach of this Agreement, make or publicly advance any request or proposal that the Company or Board amend, modify or waive any provision of this Agreement, or with respect take any action challenging the validity or enforceability of any provisions of this Section 2 (provided, that the Engaged Group may make confidential requests to purchases the Board to amend, modify or waive any provision of Common Stock expressly permitted Agreement, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by Section 2(a)(ithe Engaged Group and is made by the Engaged Group in a manner that does not require the public disclosure thereof by the Company, the Engaged Group or any other person);
(i) acquire or agree, offer, proposeseek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the assets or business of the Company or any rights or options to acquire any such assets or business from any person, in each case other than Securities of the Company;
(j) seek, propose or make any public statement with respect to, or encouragesolicit, solicit negotiate with, or negotiate with provide any third party information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(viik) seek disclose publicly, or privately in a manner that could reasonably be expected to advisebecome public, encourageany intention, support plan or influence arrangement inconsistent with the foregoing; or
(l) enter into any agreement, arrangement or understanding concerning any of the foregoing (other than this Agreement) or encourage or solicit any person with respect to undertake any of the foregoing activities. Notwithstanding anything to the voting or disposition of any securities of the Company at any annual or special meeting of shareholderscontrary, except in accordance with Section 1; provided that nothing in this subsection Agreement shall prohibit Dolphin restrict any of the New Nominees from taking any action during the Standstill Period in support his or her capacity as a director of the Dolphin Director (including engaging Company in a solicitation of proxies for the election of the Dolphin Director) in connection manner consistent with any special meeting of his or her fiduciary duties to the Company’s shareholders called , and the taking of any such action by such individuals shall not be a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms breach 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 PartyAgreement.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees that, from From the date of this Agreement until the earlier of (i) the date that is ten ninety (1090) business days prior to the deadline for the submission of shareholder nominations for the 2014 2015 Annual Meeting pursuant to Section 1(h), (ii) February 20, 2015, and (iii) such date, if any, as the Company’s bylaws Company has breached in any material respect any of its representations, warranties, agreements or obligations set forth in Sections 1, 3, 5, 7, or 13 hereof and such breach has not been cured within 30 days following written notice of such breach so long as such breach is curable (the “Standstill Period”), neither Dolphin, Privet nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin direction will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become the beneficial owneri. solicit, as such term is defined or knowingly encourage or in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) any way engage in any solicitation of of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) formii. advise, join knowingly encourage, support or in influence any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) person with respect to the Common Stock (other than a “group” that includes all voting or some disposition of any securities of the persons identified on Exhibit A and the Board ObserverCompany at any annual or special meeting of stockholders, but does not include any other entities except in accordance with Section 1, or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin seek to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreementdo so;
(iv) iii. deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Privet and otherwise in accordance with this Agreement;
(v) (A) seek iv. seek, alone or in concert with others, representation on the Board (other than Board, except as specifically contemplated in accordance with Section 1 of this Agreement) 1;
v. seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other applicable action for the election or removal of directors with respect to the Company;
vi. form or join in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Company Exchange Act, with respect to any Common Stock or take any other action with respect that would divest Privet of the ability to the election vote or removal cause to be voted its shares of any directors (other than Common Stock in accordance with this Agreement;
vii. act alone or in concert with others to control or seek to control the management or the Board (excluding action (A) specifically contemplated in Section 1 of this Agreement), and (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director taken by any Privet Nominee in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or );
viii. with respect to purchases the Company or the Common Stock, make any communication or announcement (other than in the ordinary course of its business on a confidential basis to their investors) stating how its shares of Common Stock expressly permitted by Section 2(a)(i)will be voted, offeror the reasons therefor or otherwise communicate pursuant to Rule 14a–1(l)(2)(iv) under the Exchange Act;
ix. enter into any arrangements, proposeunderstanding or agreements (whether written or oral) with, or advise, finance, assist or knowingly encourage, any other person in connection with any of the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing;
x. make any public statement with respect toor public disclosure regarding any intent, purpose, plan or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person proposal with respect to the voting Board, the Company, its management, policies or disposition affairs or any of its securities or assets or this Agreement, that is inconsistent with the provisions of this Agreement, including any securities intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
xi. otherwise take, or solicit, cause or knowingly encourage others to take, any action inconsistent with any of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companyforegoing; or
(viii) make xii. take any request action challenging the validity or submit any proposal to waive, terminate or amend the terms enforceability of this Agreement other than through non-public communications with Section 2 or this Agreement, or request the Company or Board amend or waive any provision of this Section 2 (provided, that would Privet may make confidential requests to the Board to amend or waive any provision of this Section 2, which the Board (excluding the Privet Nominees) may accept or reject in its sole discretion, so long as any such request is not be reasonably determined to trigger publicly disclosed by Privet and is made by Privet in a manner that does not require the public disclosure obligations for thereof by the Company, Privet or any Partyother person).
Appears in 1 contract
Standstill Provisions. (a) Dolphin ▇▇▇▇▇▇▇ Value agrees that, from the date of this Agreement until the earlier of (x) the date that is ten thirty (1030) business calendar days prior to the deadline for the submission of shareholder nominations for the 2014 Company’s fiscal 2024 annual meeting of shareholders (the “2024 Annual Meeting Meeting”) pursuant to the Company’s bylaws Amended and Restated Bylaws or (y) the date that is one hundred twenty (120) calendar days prior to the first anniversary of the 2023 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will▇▇▇▇▇▇▇ Value shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of ▇▇▇▇▇▇▇ Value, but does not include any other entities or persons that are not identified on Exhibit A members of ▇▇▇▇▇▇▇ Value as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin ▇▇▇▇▇▇▇ Value to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of ▇▇▇▇▇▇▇ Value and otherwise in accordance with this Agreement;
(iv) acquire, offer or propose to acquire, or agree to acquire, on the market or through a private transaction, 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, through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in ▇▇▇▇▇▇▇ Value beneficially owning more than 9.9% of the outstanding shares of Common Stock (it being acknowledged and agreed that (i) securities awarded or granted to the New Director by the Company in connection with his service as a director of the Company shall be excluded from such restriction and (ii) ownership in excess of 9.9% of the outstanding shares of Common Stock attributed to a decrease in the number of outstanding shares of Common Stock shall not be prohibited);
(v) (Aseek or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than except as specifically permitted in accordance with Section 1 of this Agreement1), (B) otherwise seek in each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent ▇▇▇▇▇▇▇ Value or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company’s shareholders called by 2024 Annual Meeting so long as such actions do not create a person public disclosure obligation for ▇▇▇▇▇▇▇ Value or persons other than Dolphin for the purpose of removing or electing directors of the CompanyCompany and are undertaken on a basis reasonably designed to be confidential;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving ▇▇▇▇▇▇▇ Value and the direction Company, (C) affirmatively solicit a third party to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases of Common Stock expressly permitted the Company by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any such third party with respect to, prior to such proposal becoming public or (E) call or seek to call a merger, consolidation, acquisition special meeting of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companyshareholders;
(vii) seek to seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(viii) advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersshareholders with respect to the appointment, election or removal of director(s), except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viiiix) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), ▇▇▇▇▇▇▇ Value shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as ▇▇▇▇▇▇▇ Value determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor.
(c) Notwithstanding anything in Section 2(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict ▇▇▇▇▇▇▇ Value from (i) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating with shareholders of the Company and others in a manner that does not otherwise violate Section 2(a) or Section 12, or (iii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over ▇▇▇▇▇▇▇ Value.
(d) Nothing in Section 2 or elsewhere in this Agreement shall be deemed to limit the exercise in good faith by the New Director (or a Replacement Director) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees that, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws The standstill period (the “Standstill Period”)) begins on the date of the Original Agreement and shall extend until the Termination Date. Investor agrees that during the Standstill Period, neither Dolphin, Investor nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin direction will, and Dolphin Investor will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:, alone or in concert with others, without prior consent, invitation, approval, or authorization of the Board or except as otherwise provided for in the Original Agreement, as modified by this Amendment (the “Amended Agreement”):
(i) become acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the beneficial owneracquisition of, as such term is defined in Rule 13d-3 any securities of the Exchange Act, Company or any of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents its subsidiaries (including, without limitation, Ordinary Shares and debt securities) or any solicitation of consents that seeks securities convertible or exchangeable into or exercisable for Ordinary Shares, or rights or options to call a special meeting of shareholders acquire any Ordinary Shares of the Company, provided, that notwithstanding anything to the contrary contained in this Amended Agreement (including the Exhibits hereto), Investor and its Affiliates may acquire beneficial ownership or economic exposure in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director aggregate not exceeding twenty percent (including engaging in a solicitation of proxies for the election of the Dolphin Director20%) in connection with any special meeting of the Company’s shareholders called outstanding Ordinary Shares, subject to applicable law and any order issued by the Bankruptcy Court designed to preserve the Company’s net operating losses; provided, further, that notwithstanding anything to the contrary contained in the Amended Agreement (including the Exhibits hereto), Investor shall be entitled to acquire, hold and dispose of Credits of the Company (provided that the Investor shall notify the Company reasonably promptly after its first acquisition or purchase of Credits following the execution of the Amendment and, that the Company shall have the additional one-time right to be exercised during the 5-day period prior to a person scheduled vote for any or persons other than Dolphin all of the Credits to ask Investor to disclose its holding of Credits; for the purpose avoidance of removing or electing directors of doubt, the Company;
(iii) form, join or in any way participate in any “group” (within Company will only be permitted to utilize the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified right on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereofone additional occasion); provided, however, that nothing herein shall limit at no time will Investor own more than ten percent (10%) of the ability face amount of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors outstanding Credits of the Company or take any other action with respect to (the election or removal of any directors (other than in accordance with Section 1 of this Agreement)term “Credits” shall mean all debt, (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or debt securities, dissolutionloans, liquidationterm loans, reorganizationdebt facilities, change financings and other agreements for borrowed money, including, without limitation, direct ownership, holder of, participation in capital structure, recapitalization, dividend or similar transaction involving the Companyotherwise having exposure through derivative instruments);
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees thatFor purposes of this Agreement, "Standstill Period" shall mean the period from the date of execution of this Agreement until the date that is ten (10) business days prior the first day to the deadline for the submission of shareholder submit stockholder director nominations for the 2014 Annual Meeting 2022 annual meeting of stockholders pursuant to the Company’s bylaws 's Bylaws as in effect on the date of execution of this Agreement.
(b) Each member of the “Osmium Group agrees that during the Standstill Period”), neither Dolphin, it nor any of its controlled Affiliates or controlled Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its controlled Affiliates and controlled Associates not to, directly or indirectly, in any manner:
(i) become except as contemplated by the Backstop Agreement, purchase or otherwise acquire beneficial owner, as such term is defined ownership of Common Stock in Rule 13d-3 excess of the Exchange Actnumber of shares (including warrants) beneficially owned by the Osmium Group at the time of the Company's emergence from bankruptcy; provided, that, subject to any restrictions reasonably imposed by the Board in order to maintain the Company's net operating losses (including maintaining the Company’s current tax benefit preservation plan) and customary limitations on trading during blackout windows, if the Osmium Group at any time has beneficial ownership of more less than 9.9035% of the issued and outstanding shares of Common Stock, the Osmium Group may purchase up to that number of additional shares of Common Stock such that its' beneficial ownership (excluding the exercise of any warrants) is equal to 35% of the issued and outstanding Common Stock of the Company;
(ii) engage in any solicitation of proxies or consents or become a “"participant” " in a “"solicitation” " (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support securities of the Dolphin Director (including engaging in a solicitation of proxies Company or any securities convertible or exchangeable into or exercisable for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companysuch securities;
(iii) form, join or in any way participate in any “"group” " (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “"group” " that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin any member of the Osmium Group to join the “group” Osmium Group following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of the Osmium Group and otherwise in accordance with this Agreement;
(v) other than as set forth in Section 2(b)(i), engage in any short sale or purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (Aincluding, without limitation, any put or call option or swap transaction) seek representation on the Board with respect to any security (other than a board-based market basket or index) that includes, related to or derives any significant part of its value from a decline in accordance with Section 1 the market price or value of this Agreementthe securities of the Company;
(vi) seek, or encourage any person, to submit nominations in furtherance of a “"contested solicitation” " for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than except as provided for in accordance with Section 1 1);
(vii) (A) call or seek to call or request the call of this Agreement)any meeting of stockholders, including by written consent, (B) seek, alone or in concert with others, representation on, or nominate or publicly recommend any candidate to, the Board, except as specifically set forth in Section 1, (C) seek the removal of any member of the Board, (D) solicit consents from stockholders or otherwise act or seek to act by written consent, (E) conduct a referendum of stockholders, (F) make a request for any stockholder list or other similar Company books and records, (G) make any proposal for consideration by stockholders at any meeting of stockholders, or by written consent, (H) make any offer or proposal (with or without conditions) with respect to any tender offer, merger, acquisition, recapitalization, restructuring, liquidation, disposition, distribution, spin-off, asset sale, joint venture or other business combination involving the Company (an "Extraordinary Transaction"), or encourage, initiate or support any other third party with respect to any of the foregoing, (I) make any public communication in opposition to any Extraordinary Transaction approved by the Board or (J) otherwise acting alone, or in concert with others, seek to control or influence the management, Board governance or policies of the Company; provided, however, that nonpublic proposals or communications may be made to the Board without violating the provisions of this Section 2; and provided, further, that, notwithstanding anything herein to the contrary, if stockholders of the Company, other than the Dolphin Director in his capacity as suchOsmium Group and its Affiliates, or (C) instigatesubmit written consents to the Company with respect to matters permitted by written consent of stockholders, supportand such holders own a sufficient number of shares of Common Stock that, encourage or assist any third party to do any if taken together with the shares of Common Stock owned by the Osmium Group, would constitute a majority of the actions set forth in clause outstanding shares of Common Stock, then the Osmium Group, at its election, also may submit written consents and take other action otherwise prohibited by the provisions of subparagraphs (Avii) or and (Bviii) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of such action by the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companystockholders;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(viiviii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders or by written consent, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking ;
(ix) make any action during the Standstill Period public statement other than in support of the Dolphin Director recommendations of the Board regarding how any member of the Osmium Group intends to vote or instructing other stockholders how to vote;
(x) make any public disclosure regarding any intent or proposal with respect to the Board, the Company, its management or policies, any of its securities or assets or agreement that is inconsistent with the provisions of this Agreement;
(xi) institute, solicit or join, as a party, any litigation, arbitration or other proceeding against the Company or any of its current or former directors or officers (including engaging in a solicitation derivative actions), other than (A) litigation by the Osmium Group to enforce the provisions of proxies for this Agreement, (B) counterclaims with respect to any proceeding initiated by, or on behalf of, the election Company or its Affiliates against the Osmium Group, and (C) the exercise of statutory appraisal rights; provided, that the foregoing shall not prevent any member of the Dolphin DirectorOsmium Group from responding to or complying with a validly issued legal process;
(xii) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to persuade or knowingly encourage, any third party to take any action or make any statement in connection with any special meeting of the Company’s shareholders called by a foregoing, or make any investment in or enter into any arrangement with any other person that engages, or persons other than Dolphin for the purpose of removing offers or electing directors proposes to engage, in any of the Company; orforegoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(viiixiii) take any action challenging the validity or enforceability of this Section 2 or this Agreement, or make any request or submit any proposal to waive, terminate or 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; or
(xiv) disclose any intention, plan or arrangement inconsistent with any provision of this Section 2.
(c) Notwithstanding anything herein to the contrary, nothing in this Section 2 shall be deemed to in any way restrict or limit the Osmium Directors or the EC Director from, in their capacities as members of the Board, privately expressing or advocating for their views to the Company, other members of the Board or during Board meetings.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Exeter agrees that, from the date of this Agreement until the date that is ten (10) business days prior to expiration of the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willshall, and Dolphin will it shall cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(iia) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyCompany Interests;
(iiib) form, join join, encourage the formation of, or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock any Company Interests (other than a “group” that includes all or some consists solely of the entities and persons identified set forth in Exeter’s Schedule 13D as filed with the SEC on Exhibit A and the Board ObserverAugust 26, but does not include any other entities or persons not identified on Exhibit A as of the date hereof)2019; provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Exeter to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement);
(ivc) deposit any Common Stock Company Interests in any voting trust or subject any Common Stock Company Interests to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among Exeter and its Affiliates and otherwise in accordance with this Agreement;
(vd) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors directors;
(e) (i) make, or seek or encourage the making of, any proposal for consideration by stockholders at any Stockholder Meeting, (ii) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other than business combination involving Exeter and the Company, (iii) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other business combination involving the Company (or to refrain from doing so), or encourage, initiate or support any third party in accordance with Section 1 of this Agreementmaking such an offer or proposal (or from refraining from doing so), (Biv) otherwise seek to control publicly comment on or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist recommend any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, liquidation, dissolution or other business combination with respect to do the Company by such third party, (v) call, seek to call, or encourage, initiate or participate in any request to call, a Stockholder Meeting, (vi) seek to amend any provision of the actions set forth in clause Certificate of Incorporation, Bylaws, or other governing documents of the Company or its subsidiaries (Aeach as may be amended from time to time), (vii) enter into or maintain any economic, compensatory, pecuniary or other arrangements with any director or nominees for director of the Company or (Bviii) above; provided that nothing in this subsection shall prohibit Dolphin from taking take any action during similar to the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection foregoing with respect to any special meeting of the Company’s shareholders called by a person subsidiaries or persons other than Dolphin for the purpose of removing or electing directors assets of the Company;
(Af) make any proposal for consideration by shareholders at any annual seek, alone or special meeting of shareholders of the Companyin concert with others, or (B) other than at the direction or with the consent of representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(viig) seek to advise, encouragesupport, support influence or influence knowingly encourage any person or entity with respect to the voting or disposition of any securities of the Company Interests at any annual or special meeting of shareholdersStockholder Meeting, except in accordance with Section 1; provided (h) institute, solicit, join or assist in any litigation, arbitration or other proceeding (including any derivative action) against or involving the Company, its current or former directors or officers, or any of their Affiliates or Associates, make any “books and records” demands against the Company or make application or demand to a court or other person or entity for an inspection, investigation or examination of the Company or its subsidiaries or Affiliates; provided, however, that nothing in shall prevent Exeter from bringing litigation to enforce the provisions of this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; orAgreement;
(viiii) make any request or submit any proposal to waiveamend, terminate modify or amend waive the terms of this Agreement or take any action challenging the validity or enforceability of any provision of or obligations arising under this Agreement, other than through non-public confidential communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party;
(j) (A) 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 “group” (within the meaning of Section 13(d)(3) of the Exchange Act), through swap or hedging transactions or otherwise, ownership (beneficial or otherwise) of any Company Interests, other than shares of Common Stock as permitted by the Ownership Limitation Waiver or (B) make any request to increase the ownership limit contained in the Ownership Limitation Waiver; or
(k) enter into any negotiations, discussions, agreement, arrangement or understanding with any person or entity concerning any of the foregoing (other than this Agreement) or encourage or solicit any person or entity to undertake any of the foregoing activities.
Appears in 1 contract
Sources: Board Composition Agreement (CBL & Associates Limited Partnership)
Standstill Provisions. (a) Dolphin agrees that, from From the date of this Agreement until the date that is ten termination of the Standstill Period (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”defined below), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willeach Altai Party shall not, and Dolphin will shall cause each of such its Affiliates and Associates not to, without the prior written consent of the Board (which consent may be given or withheld by the Board in its sole discretion), directly or indirectly, in any manner, do any of the following:
(ia) become the beneficial owner, enter into or effect any "short sale" (as such term is defined in Rule 13d-3 200 of Regulation SHO of the Exchange Act, ) of more than 9.90% of the Common Stockany Voting Securities or any hedging transaction which establishes a net short position with respect to any Voting Securities;
(iib) engage (i) engage, or in any solicitation way participate, directly or indirectly, in any "solicitation" (as such term is defined in Rule 14a-1(l) under the Exchange Act) of proxies or consents consents, (ii) seek to advise, encourage or become a “participant” in a “solicitation” influence any person with respect to the voting of any Voting Securities, (iii) initiate, propose or otherwise "solicit" (as such terms are term is defined in Regulation 14A Rule 14a-1(l) under the Exchange Act Act) shareholders of proxies Company for the approval or consents rejection of any shareholder proposal, (iv) initiate, encourage or participate in any "vote no," "withhold" or similar campaign with respect to any stockholder meeting, (v) induce or attempt to induce any other person to initiate any such shareholder campaign or proposal or participate in any such campaign or shareholder proposal, or (vi) call or attempt to call a special meeting of the Company's stockholders or demand a copy of Company's list of stockholders or its other books and records, in each case, other than by the Altai Designee only in his capacity as and in the exercise of his fiduciary duties as director of the Company;
(c) deposit any Voting Securities in any voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting thereof;
(d) seek, alone or in concert with others, to (i) obtain representation on the Board (other than as provided in Section 1 hereof), nominate or otherwise elect or appoint, or recommend for election, nomination or appointment, any member of the Board, (ii) effect the removal of any member of the Board or (iii) seek or offer to control or influence, in any manner, the Board, business(es), assets, management, policies, capital structure, ownership or tax status of Company, other than, in the case of this clause (iii), in connection with the Discussions; in each case , other than by the Altai Designee only in his capacity as and in the exercise of his fiduciary duties as director of the Company;
(e) effect or seek to effect (including, without limitation, by entering into any solicitation discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, (i) any acquisition or sale of consents that seeks to call a special meeting of shareholders all or substantially all of the Company)securities, in each caseassets or businesses of Company or any of its Affiliates, (ii) any tender offer, exchange offer, merger, acquisition, share exchange, joint venture, business combination or other similar transaction involving any Voting Securities or any of the assets or businesses of Company or any of its Affiliates or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Company or any of its Affiliates or any portion of its or their assets or businesses (each, an "Extraordinary Transaction"); provided, however, this paragraph shall not restrict such persons from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the Common Stocksame basis as other shareholders of Company or any of its Affiliates, or from participating in any Extraordinary Transaction that has been approved by the Board;
(f) initiate any litigation or other court or arbitral proceedings against the Company or any of its Affiliates (other than in accordance with Section 1 litigation against the Company for purposes only of enforcing this Agreement; provided that nothing );
(g) (i) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the actions described in this subsection shall prohibit Dolphin from taking Section 2, (ii) advise, assist, encourage or seek to persuade any Third Party to take any action during the Standstill Period in support with respect to any of the Dolphin Director (including engaging actions described in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
this Section 2, (iii) form, join or in any way participate in a partnership, syndicate or other group (including, without limitation, any “"group” (within the meaning of " as defined under Section 13(d)(3) of the Exchange Act) ), other than a group composed solely of affiliated entities of Altai, with respect to the Common Stock (other than a “group” that includes all or some any of the persons identified on Exhibit A and actions described in this Section 2 or (iv) otherwise take or cause any action inconsistent with any of the actions described in this Section 2; or
(h) make a public request, or any request that reasonably would be expected to require the Company or Altai or any of its Affiliates or Associates to disclose publicly, in any form that the restrictions of this Section 2 be waived or that the Company or the Board Observer, but does not include take any other entities action which would permit Altai or persons not identified on Exhibit A as any of its Affiliates or Associates to take any of the date hereof)actions described in this Section 2; provided, however, that nothing herein in this Section 2 shall limit (A) prevent Altai and its Affiliates, Associates or Representatives from making (x) any factual statement as required by applicable legal process, subpoena or legal requirement from any governmental authority with competent jurisdiction over the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
party from whom information is sought (iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement requirement arising from actions by Altai in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 violation of this Agreement), provided, that Altai, prior to making any such statement, shall have used reasonable efforts to cause such statement to be treated confidentially and to provide to the Company as much prior notice as practicable so that the Company may seek confidential treatment of such statement, or (y) private communication to the Company that would not be reasonably expected to trigger public disclosure obligations for any Party and (B) otherwise seek be deemed to control or influence limit the management, Board or policies exercise in good faith by the Altai Designee of the Company, other than the Dolphin Director his fiduciary duties solely in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company. For purposes of this Section 2, or with respect the term "Standstill Period" shall mean the period starting on the date hereof until the date determined pursuant to purchases either: (a) if the Altai Designee shall have resigned from the Board and all committees of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect Board prior to the voting or disposition of any securities date that is two (2) weeks prior to the last day of the time period established pursuant to the Bylaws for stockholders to deliver notice to the Company at any of director nominations to be brought before the 2021 annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person 's stockholders (the "2021 Relevant Date") then the 2021 Relevant Date; or persons other than Dolphin for (b) if, on the purpose of removing or electing directors 2021 Relevant Date the Altai Designee has not resigned from the Board, then the date that is two (2) weeks prior to the last day of the Company; or
(viii) make any request or submit any proposal time period established pursuant to waive, terminate or amend the terms of this Agreement other than through non-public communications with Bylaws for stockholders to deliver notice to the Company that would not of director nominations to be reasonably determined to trigger public disclosure obligations for any Partybrought before the 2022 Annual Meeting (the "2022 Relevant Date").
Appears in 1 contract
Standstill Provisions. (a) Dolphin Viex agrees that, that from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws 11:59 p.m., Eastern Time, on August 30, 2018 (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin direction will, and Dolphin it will cause each of such its Affiliates and Associates under its control and direction not to, directly or indirectly, in any manner:
(ia) become purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Common Stock or other securities issued by the beneficial ownerCompany, as or any securities convertible into or exchangeable for Common Stock, such term is defined that Viex, together with its Affiliates and Associates would, in Rule 13d-3 the aggregate, beneficially own a number of shares in excess of fifteen percent (15.0%) of the Exchange Act, then outstanding shares of more than 9.90% of the Common Stock;
(iib) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company)consents, in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiic) form, join or in any way participate in any “partnership, limited partnership, syndicate or other group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “partnership, limited partnership, syndicate or other group” that includes all or some of the persons identified on Exhibit A B and the Board Observertheir Affiliates, but does not include any other entities or persons not identified on Exhibit A B as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivd) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Viex and otherwise in accordance with this Agreement;
(ve) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companydirectors;
(f) (A) make any proposal (binding or non-binding) for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company or participate in any proposal made by any third party, (B) conduct a referendum of stockholders, (C) make a request for any stockholder list materials or any books and records of the Company or any of the Company’s Affiliates or Associates whether pursuant to Section 220 of the Delaware General Corporation Laws or otherwise, (D) make or, other than as unanimously supported by the Board, participate in any offer or proposal (with or without conditions and whether public or private) with respect to any merger, acquisition, recapitalization, restructuring, disposition, distribution, spin-off, asset sale, joint venture or other business combination involving the Company or of any of its Affiliates (an “Extraordinary Transaction”), or encourage, initiate or support any other third party with respect to any of the foregoing, (E) make any public communication in opposition to any Extraordinary Transaction approved by the Board, (F) call or seek to call a special meeting of stockholders of the Company, or (BG) other than at initiate, encourage or participate in any “vote no”, “withhold” or similar campaign with respect to any annual or special meeting of the direction stockholders of the Company, directly or indirectly;
(g) seek, alone or in concert with others, representation on the consent Board or the removal of any member of the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companythis Agreement;
(viih) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders;
(i) institute, except in accordance solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than (A) litigation by Viex to enforce the provisions of this Agreement, (B) counterclaims with Section 1; provided respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against Viex and (C) the exercise of statutory appraisal rights;
(j) disclose that nothing in this subsection shall prohibit Dolphin from taking any action during Viex voted contrary to the Standstill Period in support recommendation of the Dolphin Director (including engaging in Board on any matter before a solicitation meeting of proxies for the election stockholders of the Dolphin Director) Company, other than a vote at a meeting of stockholders of the Company in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; oran Extraordinary Transaction;
(viiik) authorize, solicit, pay or subsidize any third party to perform, act in concert with another person to, commit to, or agree in writing or otherwise to do, advise, assist or encourage any person in connection with, or enter into any discussions, negotiations, arrangements or understandings with any person with respect to, any act prohibited in this Section 3;
(l) make any request or submit any proposal to waive, terminate amend or amend waive the terms of this Agreement or take any other than through non-public communications with action regarding any of the Company types of matters addressed in this Section 3 that would, or would not reasonably be reasonably determined to expected to, trigger public disclosure obligations for any Party; or
(m) disclose any intention, plan or arrangement inconsistent with any provision of this Section 3.
Appears in 1 contract
Sources: Cooperation Agreement (Seachange International Inc)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 Company’s 2026 Annual Meeting of Stockholders (the “2026 Annual Meeting”) pursuant to the Company’s bylaws Fourth Exhibit 10.1 Amended and Restated Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2025 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees in writing to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2026 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives or Affiliates and Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(v) (A) make any proposal for consideration by shareholders stockholders at any annual Stockholder Meeting, (B) make any offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, (C) solicit a third party to make an offer or proposal (with or Exhibit 10.1 without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination involving the Company or any of its subsidiaries by such third party (provided that this clause (D) shall not prevent such public comment after such proposal has become generally known to the public other than as a result of a disclosure by Starboard) or (E) call or seek to call a special meeting of shareholders of the Companystockholders, or initiate or become a participant in any stockholder action by written consent;
(Bvi) other than at the direction seek, alone or in concert with the consent of others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersStockholder Meeting, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor (in each case, subject to Section 12).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by a New Director (or a Replacement Director, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 1 contract
Sources: Healthcare Agreements (Healthcare Realty Trust Inc)
Standstill Provisions. (a) Dolphin agrees thatThe Investor shall not, from and shall not suffer or permit any Subsidiaries of the date of this Agreement until the date that is ten (10) business days prior Investor to or, to the deadline for extent the submission of shareholder nominations for Investor possesses the 2014 Annual Meeting pursuant power to the Company’s bylaws (the “Standstill Period”)prevent, neither Dolphin, nor permit any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, Investor to (and Dolphin will shall use all reasonable best efforts to cause each of such Affiliates and Associates not to), directly whether acting alone or indirectly, in any mannerconcert with others:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iiia) form, join or in any way participate in any “group” (within in, or encourage the meaning of Section 13(d)(3) of the Exchange Act) formation of, a Group with respect to the Common Stock (any Shares, other than a “group” that includes all or some Group consisting solely of the persons identified on Exhibit A and the Board ObserverInvestor, but does not include any other entities or persons not identified on Exhibit A as Affiliates or Associates of the date hereof); providedInvestor, however, that nothing herein shall limit of Class B Entities or of Qualified Parties of Class B Entities or the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this AgreementInvestor;
(ivb) deposit any Common Stock in any Shares into a voting trust or (except as provided in this Agreement) subject any Common Stock such Shares to any arrangement or agreement with respect to the voting of any Common Stockor Transfer thereof, other than any such voting trust, arrangement or agreement (i) the only parties to, or beneficiaries of which, are the Investor or any Controlled Subsidiaries of the Investor, any of the Class B Entities, Parent or any Qualified Parties of the Investor or any of the Class B Entities and (ii) the terms of which prohibit any party thereto from acting in accordance a manner inconsistent with this Agreement; provided, that all of the Shares deposited into any such trust or subjected to any such arrangement or agreement shall be deemed to be Beneficially Owned by the Investor or Affiliates or Associates of the Investor for all purposes of this Agreement;
(vi) (A) seek representation on except for Shares acquired in the Board (other than in accordance with Section 1 of this Agreement) Contribution or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors upon exercise of the Company Investor's rights set forth in Section 7 or take 10, purchase or otherwise acquire Beneficial Ownership of or otherwise Beneficially Own any other action Voting Securities of Parent such that the Investor, together with respect the Affiliates of the Investor, will Beneficially Own 10% or more of the Parent Class A Shares (it being understood and agreed that any Shares acquired and from time to time Beneficially Owned by the election or removal Investor and its Affiliates as a result of any directors (other than the ownership of the Voting Securities of CSC and the exchange thereof in accordance with the Merger as disclosed to Parent pursuant to Section 1 of this Agreement2(a) shall be included and count toward such 10% threshold), or (Bii) at any time purchase or otherwise seek to control acquire any Shares in violation of Regulation M under the Exchange Act (or influence any successor provision) and the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanySEC promulgated thereunder;
(Ad) make effect or agree to effect any proposal reduction in its equity interest in Parent for consideration up to 180 days following delivery by shareholders at any annual or special meeting Parent of shareholders a written notice that Parent is proposing to consummate a business combination to be accounted for as a pooling of interests; provided, that this restriction shall terminate if Parent has not consummated such business combination within 90 days of the Companydate of such written notice and provided, or (B) other than at further, that this restriction shall be inapplicable to the direction or with extent any reduction would not adversely affect the consent accounting treatment of the Board, in the Dolphin Director’s capacity such business combination as a director pooling of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companyinterests; or
(viiie) make advise, assist (including by knowingly providing or arranging financing for that purpose) or knowingly encourage, induce or attempt to encourage or induce any request or submit other Person to take any proposal actions referred to waive, terminate or amend in the terms of this Agreement other than foregoing paragraphs (a) through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party(d).
Appears in 1 contract
Sources: Stockholders Agreement (Cablevisions System Corp /Ny)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten thirty (1030) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 Company’s 2023 Annual Meeting of Stockholders (the “2023 Annual Meeting”) pursuant to the Company’s bylaws By-Laws or (y) the date that is one hundred forty-five (145) days prior to the first anniversary of the 2022 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such Affiliates and Associates Covered Person not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks seek to call a special meeting of shareholders of the Companystockholders, or any action by written consent), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some any securities of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof)Company; provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound in writing by the terms and conditions of this AgreementAgreement (other than a “group” that includes all or some of the members of Starboard, but does not include any other entities or persons that are not members of Starboard as of the date hereof);
(iviii) deposit any Common Stock Shares in any voting trust or subject any Common Stock Shares to any arrangement or agreement with respect to the voting of any Common StockShares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations submit, or knowingly encourage any person or entity to seek or submit, nomination(s), proxies or consents in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than in accordance with directors, except as permitted under Section 1 of this Agreement1(a); provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2023 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the CompanyCompany or through any stockholder action by written consent, (B) make any offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, or knowingly publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party (provided that this clause (D) shall not prevent such public comment after such proposal has become generally known to the public other than as a result of a disclosure by Starboard), or (BE) other than at the direction call or seek to call a special meeting of stockholders, or initiate or participate in any stockholder action by written consent;
(vi) seek, alone or in concert with the consent of others, representation on the Board, except as specifically provided in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders or any stockholder action by written consent, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote the Common Shares that it beneficially owns as it determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company on any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by a Starboard Appointee or a Replacement Director of such persons’ fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
Appears in 1 contract
Sources: Agreement (Starboard Value LP)
Standstill Provisions. (a) Dolphin agrees thatDuring the Cooperation Period, from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any each member of the Affiliates or Associates that control or direct Dolphin willInvestor Group shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, directly or indirectly, alone or in concert with others (including through any manner:Representative of any member of the Investor Group or any of its controlled Affiliates):
(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 Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership 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 Investor Group or any of its controlled Affiliates holds, directly or indirectly, an aggregate Beneficial Ownership in excess of 15.0% of the then outstanding Voting Securities; provided, however, to the extent the group under Section 13(d) of the Exchange Act consisting of the members of the Investor Group is terminated, Rubric and Velan’s aggregate Beneficial Ownership shall not exceed 15.0%, or (ii) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist, knowingly facilitate or knowingly encourage any other Person to effect or seek, offer or propose to effect or participate in an Extraordinary Transaction (but nothing in this Section 2(a) shall prohibit any member of the Investor Group or any of its controlled Affiliates from tendering into (or failing to tender into) a tender or exchange offer, receiving payment or other consideration for securities of the Company, voting its Voting Securities “for” or “against” any Extraordinary Transaction, or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(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) or take any action in respect of the removal of any director, (ii) knowingly seek or knowingly 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, (iii) submit, or knowingly seek or knowingly 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, knowingly encourage or participate in any request, to call a Stockholder Meeting, (v) seek to amend any provision of the Company’s Certificate of Incorporation, as amended, or Amended and Restated Bylaws (the “Bylaws”), or (vi) take any action similar to the foregoing with respect to any subsidiary of the Company; provided, however, that nothing in this Agreement shall prevent the Investor Group or its controlled Affiliates from taking actions in furtherance of identifying director candidates in connection with the 2024 Annual Meeting if the Cooperation Period expires on the Initial Trigger Date, or the 2025 Annual Meeting if the Cooperation Period expires on the Second Trigger Date, so long as such actions do not create a public disclosure obligation for the Investor Group or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with any member of the Investor Group’s normal practices in the circumstances;
(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 the beneficial owner, a “participant” (as such term is defined in Rule 13d-3 Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in, or knowingly assist, advise, initiate, knowingly encourage or knowingly influence any person (other than the Company) in, any “solicitation” of more any proxy, consent or other authority to vote any Voting Securities (other than 9.90% such assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter); provided, however, that the foregoing shall not restrict any member of the Common StockInvestor Group 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 named proxies included in the Company’s proxy card for any Stockholder Meeting) or (ii) engage deposit or agree or propose to deposit any securities of the Company in any solicitation of proxies voting trust or consents similar arrangement, or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, subject any solicitation of consents that seeks to call a special meeting of shareholders securities of the CompanyCompany to any agreement or arrangement with respect to the voting of such securities (including a voting agreement or pooling arrangement), other than (A) any such voting trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent, or other authority to vote in each caseconnection with a solicitation made by or on behalf of the Company or (B) customary brokerage accounts, margin accounts and prime brokerage accounts;
(e) knowingly encourage, advise or knowingly influence any person, or knowingly assist any person in so knowingly encouraging, advising or knowingly influencing any person, with respect to the Common Stockgiving or withholding of any proxy, other than 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 any member of the Investor Group from stating how it intends to vote with respect to an Extraordinary Transaction, if any, in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during 1(e)(ii) and the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companyreasons therefor;
(iiif) form, join join, knowingly encourage the formation of, or in any way participate in any “group” partnership, limited partnership, syndicate or group (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock any Voting Securities (other than a “group” group that includes all or some of the persons identified on Exhibit A and members of the Board ObserverInvestor Group, but does not include any other entities or persons that are not identified on Exhibit A members of the Investor Group as of the date hereof); provided, however, that nothing herein shall limit the ability of an a controlled Affiliate of Dolphin the Investor Group to join the “group” such group following the execution of this Agreement, so long as any such controlled Affiliate agrees to be bound by the terms and conditions of this Agreement);
(ivg) deposit publicly make or publicly advance any Common Stock in request or proposal to amend, modify or waive any voting trust provision of this Agreement, or subject take any Common Stock to action challenging the validity or enforceability of any arrangement provision of or agreement with respect obligation arising under this Agreement; provided, that the Investor Group may make confidential requests to the voting Board to amend, modify or waive any provision of this Agreement, which the Board may accept or reject in its sole and absolute discretion (it being understood and agreed that the Board shall consider in good faith any waiver requests to the Acquisition limits set forth in Section 2(a) in the event of any Common Stockregistered securities offerings made by the Company), other than so long as any such voting trustrequest is not publicly disclosed by the Investor Group and is made by the Investor 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 Investor Group or any other person;
(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 220 of the Delaware General Corporation Law or otherwise; or
(i) enter into any discussion, negotiation, agreement, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on understanding concerning any of the Board foregoing (other than in accordance with Section 1 of this Agreement) or submit nominations knowingly encourage, assist, solicit, seek or seek to cause any person to undertake any action inconsistent with this Section 2. Notwithstanding anything to the contrary contained in furtherance of a “contested solicitation” for Section 2 or elsewhere in this Agreement, the election or removal of directors members of the Company Investor Group shall not be prohibited or take any other action restricted from communicating privately with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies Chief Executive Officer of the Company, other than the Dolphin Director in his capacity as such, Board or (C) instigate, support, encourage or assist any third party to do any director of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Company regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any Party. Further, no Party shall prohibit Dolphin be prohibited from taking any action during necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over such Party, provided that a breach by such Party of this Agreement is not the Standstill Period in support cause of the Dolphin applicable requirement. Furthermore, for the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be deemed to limit the exercise in good faith by any New Director (including engaging in or a solicitation of proxies for the election of the Dolphin Replacement Director) of such person’s fiduciary duties solely in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Directorsuch person’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
Appears in 1 contract
Sources: Cooperation Agreement (Heron Therapeutics, Inc. /De/)
Standstill Provisions. Each of the Lone Star Value Stockholders on behalf of itself and its respective Affiliates and Associates (aas each is defined below) Dolphin hereby severally and not jointly agrees that, that from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission termination of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws this Agreement in accordance with Section 5 of this Agreement (the “Standstill PeriodTermination Date”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(ia) become the beneficial ownersolicit, as such term is defined or encourage or in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) any way engage in any solicitation of of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks with respect to the call of a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support securities of the Dolphin Director (including engaging in Company, or call or seek to call, or encourage, support or influence anyone with respect to the call of, a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companystockholders;
(iiib) advise, encourage, support or influence any person with respect to the voting of any securities of the Company at any annual or special meeting of stockholders, or seek to do so;
(c) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverSchedule 13D, as amended, filed by the Lone Star Value Stockholders prior to the date of this Agreement (the “Group 13D”), but does not include any other entities or persons not identified on Exhibit A Group 13D as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement);
(ivd) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Lone Star Value Stockholders and otherwise in accordance with this Agreement;
(v) (Ae) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance or with Section 1 respect to the submission of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companystockholder proposal;
(Af) (i) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, Company or (Bii) make any public suggestion or recommendation or makes any public or private offer or proposal (with or without conditions) in each case with respect to a share repurchase, dividend, self-tender or other than at the direction or with the consent of the Board, change in the Dolphin Director’s capacity as a director of the Companycapitalization, or with respect to purchases any merger, acquisition, disposition, consolidation, recapitalization, restructuring, liquidation, dissolution, or other business combination or extraordinary transaction, in the case of Common Stock expressly permitted by Section 2(a)(iany of the foregoing involving the Company or any subsidiary, business, division or Affiliate of the Company or encourage or assist any person or entity in connection therewith;
(g) other than as provided in this Agreement, seek, alone or in concert with others, representation on the Board;
(h) otherwise act, alone or in concert with others to make or cause to be made any statement disparaging of the Company, its directors or management including: (i) in any document or report filed with or furnished to the SEC or any other governmental agency, (ii) in any press release or other publicly available format, or (iii) to any analyst, journalist or member of the media (including without limitation, in a television, radio, newspaper or magazine interview), or otherwise (it being agreed that the prosecution in good faith of litigation asserting that the Company has breached its obligations under this Agreement, in and of itself, shall not constitute a violation of this clause (h) to the extent it is necessary in such litigation to describe the facts underlying the asserted breach);
(i) acquire, offer or propose to acquire, or agree to acquire (except by way of stock dividends, stock splits, reverse stock splits or other distributions or offerings made available to holders of any Voting Securities (as defined below) generally), directly or indirectly, whether by purchase, tender or exchange offer, proposethrough the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or make other group (as defined under Section 13(d) of the Exchange Act or otherwise, any public statement with respect toVoting Securities if, as a result of such acquisition, the Lone Star Value Stockholders would beneficially own in the aggregate in excess of 12.5% of the then outstanding Voting Securities;
(j) enter into any discussions, negotiations, arrangements or encourage, solicit or negotiate understandings with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing matters set forth in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanySection 2; or
(viiik) take any action which could cause or require the Company or any Affiliate of the Company to make a public announcement regarding any of the foregoing, seek or request permission to do any of the foregoing, make any request to amend, waive or submit terminate any proposal provision of this Section 2 (including, without limitation, this Section 2(k)), or make or seek permission to waivemake any public announcement with respect to any of the foregoing. The Company, terminate or amend on behalf of itself and its respective Affiliates and Associates agrees that from the terms date of this Agreement until the Termination Date, neither it nor any of its Affiliates or Associates will, and it will cause each of its Affiliates and Associates not to, directly or indirectly, in any manner otherwise act, alone or in concert with others to make or cause to be made any statement disparaging of the Lone Star Value Stockholders, their respective directors or management including: (i) in any document or report filed with or furnished to the SEC or any other than through non-public communications with governmental agency, (ii) in any press release or other publicly available format, or (iii) to any journalist or member of the Company media (including without limitation, in a television, radio, newspaper or magazine interview), or otherwise (it being agreed that would the prosecution in good faith of litigation asserting that any of the Lone Star Value Stockholders has breached its obligations under this Agreement, in and of itself, shall not be reasonably determined constitute a violation of this paragraph to trigger public disclosure obligations for any Partythe extent it is necessary in such litigation to describe the facts underlying the asserted breach).
Appears in 1 contract
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations for directors for the 2014 2021 Annual Meeting pursuant to the Company’s bylaws Third Amended and Restated Bylaws or (y) the date that is one hundred (100) days prior to the first anniversary of the 2020 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons or entities identified on Exhibit A and the Board Observerattached hereto, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among Starboard, its Affiliates or Associates and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company’s shareholders called by 2021 Annual Meeting so long as such actions do not create a person public disclosure obligation for Starboard or persons other than Dolphin for the purpose of removing or electing directors of the Company;the
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving the direction Company or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the consent Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party prior to such proposal becoming public or (E) call or seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersshareholders with respect to the appointment, election or removal of director(s), except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor (in each case, subject to Section 1(c)(iii)).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by any Starboard Independent Appointee (or a Starboard Replacement Director, if applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
Appears in 1 contract
Standstill Provisions. (a) Dolphin P▇▇▇▇▇▇▇▇▇ agrees that, from that the “Standstill Period” shall commence on the date of this Agreement until and shall terminate on the date that is ten (10) business days prior to tenth anniversary hereof.
a. ▇▇▇▇▇▇▇▇▇▇ agrees that, during the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any without the prior written consent of the Affiliates Board, he shall not, directly or Associates that control indirectly:
(i) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of (A) any Common Stock or direct Dolphin willor indirect rights or options to acquire (through purchase, and Dolphin will cause each exchange, conversion or otherwise) any Common Stock, excepting solely Common Stock or other Voting Securities (I) received as a result of such Affiliates and Associates not toa stock dividend, stock distribution or stock split, (II) issued by the Company to P▇▇▇▇▇▇▇▇▇ in connection with any reorganization or recapitalization of the Company or (III) issued by the Company in connection with any rights offering;
(ii) solicit proxies (or written consents) or assist or participate in any other way, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies (or consents written consents), 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 14A, respectively, under the Securities Exchange Act of proxies or consents 1934, as amended (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company“Exchange Act”), in each caseopposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of (or the execution of a written consent in respect of) the Common StockStock or other Voting Securities, or execute any written consent in lieu of a meeting of the holders of the Common Stock or other Voting Securities or grant a proxy with respect to the voting of the Common Stock or other Voting Securities to any person other than in accordance with to the Board or persons appointed as proxies by the Board or Gabelli or his designee pursuant to Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking III.2 hereof;
(iii) initiate, propose or submit one or more stockholder proposals or induce or attempt to induce any action during other person to initiate any stockholder proposal;
(iv) seek to call or to request the Standstill Period in support of the Dolphin Director (including engaging in call of, a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by stockholders, or make a person or persons other than Dolphin request for the purpose of removing or electing directors a list of the Company’s stockholders;
(iiiv) form, join or in any way participate in any a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to for the Common Stock (other than a “group” that includes all purpose of acquiring, holding, voting or some disposing of any securities of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this AgreementCompany;
(ivvi) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board, or consent to become a nominee for election as a member of the Board unless nominated by the Board;
(vii) seek, alone or in concert with others, to place a representative or other affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) deposit any Common Stock or other Voting Securities in any a voting trust or subject enter into any Common Stock to any other arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreementthereof except pursuant to Section III.2 hereof;
(vix) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (Aincluding beneficial ownership) seek representation on of any of the Board (other than in accordance with Section 1 of this Agreement) assets or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors business of the Company or take any other action with respect rights or options to the election acquire any such assets or removal of business from any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companyperson;
(Ax) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offerseek, propose, or make any public statement with respect to, or encouragesolicit, solicit negotiate with, or negotiate with provide any third party information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(viixi) seek to take any action, alone or in concert with any other person, advise, encouragefinance, support assist or influence participate in or encourage any person with respect to the voting take any action which is prohibited to be taken by P▇▇▇▇▇▇▇▇▇ or disposition any of his affiliates or associates pursuant to this Agreement, or make any securities investment in or enter into any arrangement with, any other person that engages, or offers or proposes to engage in any of the Company at any annual foregoing;
(xii) disclose publicly, or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging privately in a solicitation of proxies for manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; orforegoing;
(viiixiii) make any request or submit demand to inspect the records of the Company or to obtain a shareholders list for the Company or encourage any proposal shareholder or other persons to waivedo so;
(xiv) commence, terminate encourage, or amend support any derivative action in the terms name of the Company or any class action against the Company or any of its officers or directors; or
(xv) take any action challenging the validity or enforceability of any provisions 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 PartySection III.
Appears in 1 contract
Sources: Exchange and Standstill Agreement (Gamco Investors, Inc. Et Al)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 Company’s 2020 annual meeting of stockholders (the “2020 Annual Meeting Meeting”) pursuant to the Company’s bylaws Amended and Restated Bylaws, effective March 2, 2018 (the “Company Bylaws”), or (y) the date that is one hundred (100) days prior to the first anniversary of the 2019 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its controlled Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its controlled Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) i. engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) ii. form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the entities or persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) iii. deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (A) iv. seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit, or knowingly encourage any person or entity, to seek or submit nominations nomination(s) in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, knowingly encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2020 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, normal practices in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companycircumstances;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten (10) 15 business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 Company’s 2024 Annual Meeting of Stockholders (the “2024 Annual Meeting”) pursuant to the Company’s bylaws By-Laws, or (y) the date that is 100 days prior to the first anniversary of the 2023 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, including any solicitation of consents that seeks to call a special meeting of shareholders stockholders of the Company), in each case, case with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, Agreement so long as any such Affiliate agrees in writing to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2024 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates, and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(v) (A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders of the Companya Stockholder Meeting, or (B) other than at the direction make any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)any merger, takeover offer, proposetender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, or make any public statement with respect to, or publicly encourage, solicit initiate or negotiate with support any third party with respect toin making such an offer or proposal, a (D) publicly comment on any third party proposal regarding any merger, consolidationtakeover offer, acquisition of control tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction combination involving the Company;
Company or any of its subsidiaries by such third party (viiprovided that this clause (D) seek to advise, encourage, support or influence any person with respect shall not prevent such public comment after such proposal has become generally known to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons public other than Dolphin for the purpose as a result of removing or electing directors of the Company; a disclosure by Starboard) or
(viii) make any request or submit any proposal to waive, terminate or 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.
Appears in 1 contract
Sources: Shareholder Agreement (Rogers Corp)
Standstill Provisions. (a) Dolphin Barington agrees that, from the date Effective Date until the earlier of this Agreement until (x) the date that is ten (10) business 35 calendar days prior to before the deadline for the submission of shareholder nominations for the 2014 2017 Annual Meeting pursuant to the Company’s bylaws Amended and Restated Code of Regulations or (y) the date that is 65 calendar days prior to the first anniversary of the date on which the Company first mailed its proxy materials for the 2016 Annual Meeting (“Standstill Period”), neither Dolphin, Barington nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin Control will, and Dolphin Barington will cause each of such Affiliates Controlled Affiliate and Associates Associate not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) ), with respect to the Common Stock securities of the Company (other than a “group” that includes all or some consists exclusively of the persons identified on Exhibit A and the Board Observerfor purposes consistent with this Agreement), but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, except that nothing herein shall in this Agreement will limit the ability of an Affiliate or Associate of Dolphin Barington to join the Barington “group” following the execution of this Agreement, Agreement so long as any such Affiliate or Associate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock securities of the Company in any voting trust or subject any Common Stock securities of the Company to any arrangement or agreement with respect to the voting of any Common Stocksecurities of the Company, other than any such voting trust, arrangement or agreement solely among the Barington Members and otherwise in accordance with this Agreement;
(viv) initiate, encourage or participate in any (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or take any Company, (B) other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigateeffort, supportalone or in concert with others, to obtain representation on the Board, in each case except as specifically contemplated in Section 1;
(v) initiate, encourage or assist any third party to do any of the actions set forth participate in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal or other business for consideration by shareholders at at, or in any “withhold” or similar campaign with respect to, any annual or special meeting of shareholders of the Company;
(vi) initiate, encourage or participate in any offer or proposal (Bwith or without conditions) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structureacquisition, recapitalization, dividend restructuring, disposition or similar other transaction involving the Company;
(vii) make any public communication in opposition to any Company acquisition, recapitalization, restructuring or disposition activity approved by the Board and not submitted to be voted on by the shareholders of the Company;
(viii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or;
(viiiix) make initiate, encourage or participate in any request or submit any proposal to waive, terminate amend or amend waive the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Party; or
(x) publicly or privately encourage or support any other shareholder or third party to take any of the actions described in this Section 2(a).
(b) Nothing contained in this Agreement shall limit in any respect the ability of each of ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ to act in accordance with his fiduciary duties, as a director, to the Company and its shareholders; provided, however, that before so acting in a manner that would otherwise be a breach of this Agreement, he shall consult, to the extent reasonably practicable, with the Chairman, the Presiding Director, the Chair of either Committee or the full Board.
(c) Each Barington Member will be entitled to:
(i) vote its shares on any other proposal duly brought before the 2015 Annual Meeting or otherwise vote, in each case except as expressly provided in Section 1(d), Section 1(e) or Section 2(a)(iv), as each Barington Member determines in its sole discretion so long as Barington Companies Equity Partners, L.P. and all other Controlled Affiliates of Barington Capital Group, L.P. vote their shares in the same manner; and
(ii) disclose, publicly or otherwise, (A) how it intends to vote with respect to any securities of the Company, any shareholder proposal or any other matter to be voted on by the shareholders of the Company, (B) how it intends to act regarding a tender offer or similar transaction relating to any securities of the Company, and (C) its reasons for doing so in each case, so long as all such disclosure or activity is (x) in compliance with the requirements of this Agreement and (y) consistent among Barington Companies Equity Partners, L.P. and all other Controlled Affiliates of Barington Capital Group L.P.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the notice deadline under the Company’s Amended and Restated Bylaws for the submission of shareholder stockholder nominations of director candidates for election to the 2014 Board at the 2026 annual meeting of stockholders of the Company (the “2026 Annual Meeting”) or (y) the date that is ninety (90) days prior to the first anniversary of the 2025 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such Affiliates and Associates Covered Person not to, in each case, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company)consents, in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities of the Common Stock Company (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof, (the “Starboard Group”)); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” Starboard Group following the execution of this Agreement, so long as any such Affiliate agrees to be bound in writing by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock Shares in any voting trust or subject any Common Stock Shares to any arrangement or agreement with respect to the voting of any Common StockShares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2026 Annual Meeting, so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the CompanyCompany or through any referendum of stockholders, (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third-party proposal regarding any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party prior to such proposal becoming public, (E) call or seek to call a special meeting of stockholders, or (BF) other than at the direction act by written consent;
(vi) seek, alone or in concert with the consent of others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 (including Sections 1(c)(ii) and 1(c)(iii)) and Section 2(a), Starboard shall be entitled to (i) vote the Common Shares that it beneficially owns as it determines in its sole discretion and (ii) subject to Section 12, disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company on any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by the New Directors (or any Replacement Director, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
Appears in 1 contract
Sources: Cooperation Agreement (Kenvue Inc.)
Standstill Provisions. (a) Dolphin Maran agrees that, from the date of this Agreement until the earlier of (i) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations for the 2014 2022 Annual Meeting pursuant to the Company’s bylaws Bylaws (the “Standstill Period”), neither Dolphin, nor any and (ii) the announcement of its Affiliates or Associates under its control or direction, nor any an Extraordinary Transaction that would result in a change of greater than 50% of the Affiliates ownership or Associates that control or direct Dolphin willof the Company, Maran shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in or encourage any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Maran, but does not include any other entities or persons that are not identified on Exhibit A members of Maran as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Maran to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Maran and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Maran or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin identifying a Maran Replacement Director (including engaging in a solicitation of proxies for the election of the Dolphin Directorpursuant to Section 1(a)(ii) in connection with any special meeting of the Company2021 Annual Meeting, so long as such actions do not create a public disclosure obligation for Maran or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Maran’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, liquidation, dividend, disposition or other than at business combination involving the direction Company, (C) solicit a third party to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases of Common Stock expressly permitted the Company by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any such third party prior to such proposal becoming public or (E) call, encourage or seek to call a special meeting of shareholders;
(vi) seek, alone or in concert with respect toothers, a mergerrepresentation on the Board, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change except as specifically permitted in capital structure, recapitalization, dividend or similar transaction involving the CompanySection 1;
(vii) seek acquire securities (or rights or options to acquire securities) of the Company that would result in Maran in the aggregate owning, controlling or otherwise having any beneficial or other ownership interest of more than 14.9% of the then-outstanding Common Stock;
(viii) advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting acquisition or disposition of any securities of the Company or voting at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or;
(viiiix) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party; or
(x) institute or join any litigation, arbitration or other proceeding (including any derivative action) against the Company or its directors or officers, except that the foregoing will not prevent Maran from (i) bringing litigation to enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against Maran; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; or (v) responding to or complying with a validly issued legal process.
(b) Except as expressly provided in Section 1 or Section 2(a), Maran shall be entitled to vote any shares of Common Stock that it beneficially owns as Maran determines in its sole discretion.
(c) Nothing in Section 2(a) will prohibit or restrict Maran from (A) communicating privately with the Board or any officer or director of Company regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, subject in any case to any confidentiality obligations to Company of any such director or officer, (B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over Maran, but only if a breach by Maran of this Agreement is not the cause of the applicable requirement, or (C) privately communicating to any of its investors or potential investors public information regarding Company, but only if such communications comply with applicable law, Company policies and this Agreement. For the avoidance of doubt, subject to applicable law and Company policies, Maran will not be prohibited from communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Section 2.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Starboard agrees that, that from the date of this Agreement until the earlier of (i) the date that is ten (10) 10 business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2013 Annual Meeting pursuant to the Company’s bylaws By-Laws and (ii) the date that is 100 days prior to the first anniversary of the 2012 Annual Meeting (the “Standstill Period”), ) neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin direction will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become the purchase or cause to be purchased or otherwise acquire or in any manner agree, offer, seek or propose to acquire beneficial owner, ownership (as such term is defined in determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”)) of any Common Stock or other securities issued by Company (or any rights, options or other securities convertible into or exercisable or exchangeable (whether or not convertible, exercisable or exchangeable immediately or only after the passage of time or the occurrence of a specified event) for such securities or any obligations measured by the price or value of any securities of the Company or any of its affiliates, including any swaps or other derivative arrangements designed to produce economic benefits and risks that correspond to the ownership of Common Stock, whether or not any of the foregoing would give rise to beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act), and whether or not to be settled by delivery of Common Stock, payment of cash or by other consideration, and without regard to any short position under any such contract or arrangement (collectively, the “Other Equity Rights”)), if in any such case, immediately after the taking of such action, Starboard would, in the aggregate, collectively beneficially own, or have an economic interest in or referenced by, more than 9.9014.99% of the then outstanding shares of the Common Stock;
(ii) solicit, or encourage or in any way engage in any solicitation of of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks with respect to the call a special meeting of shareholders of the Companystockholders), in each case, with respect to securities of the Common StockCompany, other than or call or seek to call, or encourage, support or influence anyone with respect to the call of, a special meeting of stockholders;
(iii) advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, except in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person 1, or persons other than Dolphin for the purpose of removing or electing directors of the Companyseek to do so;
(iiiiv) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Avi) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than directors; provided, however, that nothing herein will limit the ability of Starboard to recommend a Starboard Replacement Director(s) in accordance with Section 1 1(f).
(vii) (A) make any proposal for consideration by stockholders at any annual or special meeting of this Agreement), stockholders of the Company or (B) make any offer or proposal (with or without conditions, publicly or otherwise) with respect to a merger, acquisition, disposition, consolidation, recapitalization, restructuring, liquidation, dissolution, or other business combination or extraordinary transaction involving the Company or any subsidiary or Affiliate of the Company or encourage or assist any person or entity in connection therewith; provided, however, that nothing herein will limit the ability of (1) any member of Starboard, or its respective Affiliates and Associates, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company or (2) Starboard to announce its opposition to any Board-approved publicly announced proposals relating to a merger, acquisition, disposition of all or substantially all of the assets of the Company or other business combination involving the Company requiring a vote of stockholders of the Company;
(viii) seek, alone or in concert with others, representation on the Board, except as specifically contemplated in Section 1;
(ix) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, other than the Dolphin Director in his capacity as such, Company or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) its subsidiaries, affiliates or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companydivisions;
(Ax) make enter into any proposal for consideration by shareholders at any annual discussions, negotiations, arrangements or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate understandings with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing matters set forth in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanySection 2; or
(viiixi) take any action which could cause or require the Company or any Affiliate of the Company, or Starboard or any Affiliate of Starboard, to make a public announcement regarding any of the foregoing, publicly seek or request permission to do any of the foregoing, publicly make any request to amend, waive or submit terminate any proposal to waive, terminate or amend the terms provision of this Agreement other than through non-Section 2 (including, without limitation, this Section 2(a)(xi), or make or seek permission to make any public communications announcement with respect to any of the Company that would not be reasonably determined to trigger public disclosure obligations for any Partyforegoing.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees that, from Commencing on the date of this Agreement hereof and until the date that is ten (10) business days prior to Termination Date, unless otherwise agreed in writing by the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”)Equity One Board and Gazit Globe, neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin LIH will, and Dolphin will cause each member of such Affiliates and Associates not Liberty Group to, directly or indirectly, in any manner:
: (i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Equity One or EQY Common Stock, other than not make, engage, vote in accordance with Section 1 favor of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iii) form, join or in any way participate in or influence, directly or indirectly, a hostile takeover or other similar action or any “groupsolicitation,” (within as such term is used in the meaning of Section 13(d)(3) proxy rules of the Exchange ActCommission) with respect to the Common Stock by way of tender offer, exchange offer, merger or other business combination, proxies, consents (other than a “group” that includes all whether or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect relating to the election or removal of directors), voting agreements, change of management or otherwise, except in connection with any directors of the foregoing that is recommended or not opposed by the Equity One Board and that is not initiated by Liberty Group, provided, however, that the presence of the director designated by LIH on the Equity One Board will not violate this Section 2.8, and notwithstanding this Section 2.8, such board member may vote and take such other actions as he or she determines is appropriate in accordance with the exercise of his or her duties as a director and provided further that any member of Liberty Group may abstain from voting on any matter described in this Section 2.8 and, subject to Section 3.4, may tender shares of EQY Common Stock Beneficially Owned by such member in connection with any tender offer or exchange offer without violation of this Section 2.8, (ii) except as provided for in this Agreement, not seek, alone or in concert with others, election or appointment to, or representation on, or nominate or propose the nomination of any candidate to, the Equity One Board, (iii) not initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the Commission) stockholders of Equity One for the approval of stockholder proposals made to Equity One whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise, or cause or encourage or attempt to cause or encourage any other person to initiate any such stockholder proposal, regardless of its purpose, and (iv) not purchase or cause to be purchased or otherwise acquire or agree to acquire, or become or agree to become the Beneficial Owner of, any other securities issued by Equity One, or any securities convertible into or exchangeable for EQY Common Stock (other than EQY-CSC Class A Shares) or any other equity securities of Equity One, if in accordance with Section 1 any such case immediately after the taking of such action Liberty Group would, in the aggregate, Beneficially Own in excess of the greater of (A) a number of shares of voting stock of Equity One equal to 19.9% of the shares of Equity One that are outstanding as of the Closing (as such amount may be adjusted after the date of Closing for splits, reclassifications, recapitalizations, recombinations and/or similar events or transactions) (such number of shares to be agreed by the parties as of the Closing and set forth on Schedule I to be attached to this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support 15% of the Dolphin Director EQY Common Stock outstanding on a Fully Diluted Basis from time to time (including engaging in the “Ownership Cap”), which Ownership Cap will automatically be reduced from time to time, if Liberty Group sells any EQY Common Stock, to a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Companynew Ownership Cap that is equal to Liberty Group’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Boardthen Beneficial Ownership percentage, in the Dolphin Director’s capacity as a director aggregate, of the Company, or with respect to purchases shares of EQY Common Stock expressly permitted by then outstanding on a Fully Diluted Basis; provided, however that in all events Liberty Group may Beneficially Own or acquire up to 9.9% of the shares of EQY Common Stock then outstanding on a Fully Diluted Basis and Liberty Group may acquire shares in order to satisfy the ownership requirements set forth in Section 2(a)(i)2.2(ii) during any Cure Period; provided, offer, propose, or make however in all events any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer EQY Common Stock by Liberty Group in addition to those shares of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.EQY Common
Appears in 1 contract
Sources: Equityholders Agreement
Standstill Provisions. (a) Dolphin agrees that, from During the date period commencing with the execution and delivery of this Agreement until and ending on the earlier of (x) January 25, 2020, and (y) the date that is ten thirty (1030) business days prior to the deadline last date for which notice of a stockholder’s intention to nominate any individual as a director of the submission of shareholder nominations for the 2014 Annual Meeting pursuant to Company at the Company’s bylaws 2020 annual meeting of stockholders must be received by the Company (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin will cause each of such Affiliates and Associates not toSRS shall not, directly or indirectly, in any manner:, take any of the following actions (unless specifically permitted to do so in writing in advance by the Board):
(a) acquire, offer to acquire, or cause to be acquired any ownership or other interest in any Voting Securities or any Synthetic Position such that SRS would collectively have Beneficial Ownership of more than the greater of (x) 16,190,449 and (y) 20% of the outstanding Voting Securities (the “Independent Ownership Limit”) immediately following the consummation of such transaction; provided, that for the avoidance of doubt, nothing contained in this Agreement shall in any way limit the ability of SRS to acquire, offer to acquire or cause to be acquired any ownership or other interest in any Synthetic Position that (i) is not required or permitted to be settled, in whole or in part, in Voting Securities and (ii) does not grant SRS a right, option or obligation to own, acquire or control or direct the voting of any Voting Securities upon Exercise;
(b) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, Voting Securities, or become the beneficial owner, a “participant” (as such term is defined in Rule 13d-3 Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), in or assist, advise, knowingly encourage or knowingly influence 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 Voting Securities (other than such advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter);
(c) other than through open market or block trade brokered sale transactions where (i) the identity of the purchaser is unknown to SRS, or (ii) SRS does not directly or indirectly select or influence the selection of the purchaser, sell, offer or agree to sell any Voting Securities of the Company to any Third Party that, to the knowledge of SRS after due inquiry, (x) has aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 9.904.9% of the issued and outstanding Common Stock or (y) would result in such Third Party having aggregate Beneficial Ownership (together with its Affiliates and Associates) of more than 4.9% of the issued and outstanding Common Stock;
(d) 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, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or any of their respective securities (each, an “Extraordinary Transaction”) other than an Extraordinary Transaction approved by the Board; provided that nothing in this paragraph (d) shall preclude or prohibit SRS (or its Affiliates) from (i) tendering into a tender or exchange offer; (ii) engage in any solicitation making a proposal providing for a Change of proxies or consents or become Control Transaction (as defined below) involving the acquisition of all of the outstanding Common Stock of the Company (a “participant” Wholeco Transaction”) directly to the Board or a committee thereof and making filings in a “solicitation” as connection with such terms are defined in Regulation 14A proposal and related discussions or negotiations under Section 13(d) of the Exchange Act and related regulations; provided, that SRS has provided notice of proxies or consents its intention to make such filing (including, without limitation, any solicitation of consents that seeks to call together with a special meeting of shareholders reasonable description of the Companymaterial items to be disclosed in such filing and, if available, a draft thereof) to the Company as soon in advance as reasonably practicable; (iii) in the event the Board is no longer engaging in good faith negotiations relating to, or rejects an offer made by SRS (whether binding or non-binding), in each case, in accordance with clause (ii) above, making such offer directly to stockholders of the Company after providing notice of its intent to do so as soon in advance as reasonably practicable; or (iv) after providing written notice to the Company (which may be given not more than once during any twelve (12) month period; provided that an additional notice may be given during any twelve (12) month period if the Company enters into a confidentiality agreement with a Third Party with respect to the Common Stocka potential Wholeco Transaction), other for a period of no more than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director seventy-five (including 75) days after such notice, engaging in a solicitation of proxies for the election of the Dolphin Director) in connection discussions with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock Persons (other than a Competitor) about the possibility of partnering in the making of an offer for a Wholeco Transaction under clause (ii) or, to the extent applicable, clause (iii) above and making an offer (whether binding or non-binding) contemplated by such clauses in partnership with any Person (other than a Competitor) as long as such offer to the Board under clause (ii) above is first made on or prior to the end of such 75-day period; provided, that (x) nothing in clauses (ii)-(iv) above shall be deemed to permit SRS to disclose any confidential information of the Company to any Person without the prior written consent of the Company, (y) Sections 2(d), (f), (g), (h) and (k) shall not prevent actions (and the other subsections of Section 2 shall not be deemed to prohibit actions taken by SRS that otherwise would be prohibited by Sections 2(d), (f), (g), (h) and (k) had they applied) to the extent such actions are taken in connection with discussions and offers made in compliance with clause (iii) or (iv) above (provided, that for the avoidance of doubt, Section 2(a) shall continue to prohibit the acquisition of Voting Securities except as results solely from being deemed a “group” with another Person as a result of such discussions or offers or from consummating a Wholeco Transaction that includes all or some otherwise complies with this Section 2(d)), and (z) exploratory discussions by SRS in response to an unsolicited initiation by another Person of discussions with SRS with respect to partnering in the making of an offer for a Wholeco Transaction shall not be deemed to contravene the restrictions set forth in this Section 2(d), provided that thereafter engaging in substantive discussions about the material terms of the persons identified on Exhibit A partnership and Wholeco Transaction shall either require the consent of the Board Observer, but does not include any other entities or persons not identified on Exhibit A as the giving of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound notice contemplated by the terms and conditions of this Agreementclause (iv) above;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(ve) (Ai) call or seek the Company or any other Person to call any meeting of stockholders, including by written consent, (ii) seek representation on on, or nominate any candidate to, the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of except as expressly provided by this Agreement), (Biii) otherwise nominate any candidate to the board of directors of any Competitor unless such candidate is independent from SRS and SRS takes all appropriate acts to prevent such third party from providing any competitively sensitive information to SRS, (iv) seek to control or influence the management, removal of any member of the Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(Av) make any proposal for consideration by shareholders at any annual or special meeting of shareholders the Company’s stockholders;
(f) take any public action in support of or make any public proposal or request that constitutes or relates to: (i) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (ii) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, (iii) any other material change in the Company’s management, business or corporate structure, (iv) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any Person, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(g) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(h) except as is reasonably acceptable to the Company, form or join in a partnership, limited partnership, syndicate or other group, including a “group” as defined under Section 13(d) of the Exchange Act (a “Group”), with respect to the Voting Securities (for the avoidance of doubt, excluding any group composed solely of SRS and its Affiliates or as contemplated by Section 2(d) herein);
(i) make any request for stockholder list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law (the “DGCL”) or otherwise;
(j) institute, solicit or join, as a party, any litigation, arbitration or other proceeding (including any derivative action) against the Company or any of its future, current or former directors or officers or employees (provided, that nothing shall prevent SRS from bringing litigation to enforce the provisions of this Agreement or being a party to a class action instituted by a Third Party without the assistance or encouragement of SRS);
(k) except as is reasonably acceptable to the Company or as contemplated by Section 2(d) herein, enter into any discussions, negotiations, agreements, or understandings with any Third Party with respect to any of the foregoing, or assist, advise, knowingly encourage or knowingly influence any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(l) (i) contest the validity of, or (ii) publicly request any waiver of, the obligations set forth in this Section 2; provided, that clause (i) shall not be deemed to prevent SRS from defending any claim by the Company that SRS has breached this Section 2. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 2 shall not be deemed to (x) prohibit SRS or its directors, officers, partners, employees, members or agents (acting in such capacity) from communicating privately with the Company’s directors or officers so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure (including under Section 13(d) of the Exchange Act and related regulations) of such communications (except to the extent permitted by Section 2(d)) or (y) restrict any Applicable Director in the exercise of his fiduciary duties to the Company and all of its stockholders. Notwithstanding anything to the contrary in this Agreement, Sections 2(d), (f), (g), (h) and (k) shall be of no further force and effect (and the other subsections of Section 2 shall not be deemed to prohibit actions taken by SRS that otherwise would be prohibited by Sections 2(d), (f), (g), (h) and (k) had they been in effect to the extent such actions are taken in pursuit of a Change of Control Transaction; provided, that for the avoidance of doubt, Section 2(a) shall continue to fully apply in accordance with its terms except for offers (but not acquisitions of Voting Securities) relating to a Change of Control Transaction) in the event that (i) the Company shall enter into a definitive agreement providing for (A) a merger, consolidation, business combination or similar transaction immediately following which the stockholders of the Company immediately prior to the consummation of such transaction (other than stockholders of the Company who have entered into, or who are members of a Group any member of which has entered into, a definitive agreement with the Company in respect of a transaction of the type described in this clause (A)) will hold less than 80% of the total combined voting power of the Company or any successor holding company, (B) a tender or exchange offer for 20% or more of the Voting Securities of the Company, (C) a sale of 20% or more of the consolidated assets of the Company and its subsidiaries (including equity securities of subsidiaries) in a single transaction or series of related transactions (other than in the ordinary course of business), or (D) a sale of 20% or more of the Voting Securities outstanding immediately prior to such sale in a single transaction or series of related transactions (each of (A), (B), (C) and (D) constituting a “Change of Control Transaction”), (ii) the Company formally or publicly commences a process contemplating a Change of Control Transaction and (x) does not provide SRS an opportunity to participate in such a process on the same terms as Third Parties, or (y) includes conditions to participation that are designed to prevent SRS from participating in such a process on the same terms as Third Parties or (iii) a Third Party shall commence a tender offer or exchange offer or otherwise make a bona fide public offer to acquire the Company, all or substantially all of the assets of the Company, or (B) other than at the direction 50% or with the consent more of the Board, in the Dolphin Director’s capacity as a director Voting Securities of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)in each case, offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, not resulting from a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms violation 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 PartySection 2.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Each of the Marcato Stockholders solely on behalf of itself and its respective Affiliates and Associates and each of the Oskie Stockholders solely on behalf of itself and its respective Affiliates and Associates hereby severally and not jointly agrees that, that from the date hereof until the termination of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws in accordance with Section 5 hereof (the “Standstill PeriodTermination Date”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(ia) become the beneficial ownersolicit, as such term is defined or encourage or in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) any way engage in any solicitation of of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act (as defined below) of proxies or consents (including, without limitation, any solicitation of consents that seeks with respect to the call of a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support securities of the Dolphin Director (including engaging in Company, or call or seek to call, or encourage, support or influence anyone with respect to the call of, a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companystockholders;
(iiib) advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, or seek to do so;
(c) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverGroup 13D as of the date hereof, but does not include any other entities or persons not identified on Exhibit A Group 13D as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivd) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of the Marcato-Oskie Group and otherwise in accordance with this Agreement;
(v) (Ae) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance or with Section 1 respect to the submission of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companystockholder proposal;
(Af) (i) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the CompanyCompany or (ii) make any recommendation, suggestion, or other statement, offer or proposal (Bwith or without conditions, publicly or otherwise) with respect to a share repurchase, dividend, self-tender or other than at the direction or with the consent of the Board, change in the Dolphin Director’s capacity as a director of the Companycapitalization, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i)any merger, offeracquisition, proposedisposition, consolidation, recapitalization, restructuring, liquidation, dissolution, or other business combination or extraordinary transaction, in the case of any of the foregoing involving the Company or any subsidiary, business, division or Affiliate of the Company or encourage or assist any person or entity in connection therewith;
(g) seek, alone or in concert with others, representation on the Board;
(h) otherwise act, alone or in concert with others to make any public statement with respect tocritical of the Company, its directors or encouragemanagement (it being agreed that the prosecution in good faith of litigation asserting that the Company has breached its obligations under this Agreement, solicit in and of itself, shall not constitute a violation of this clause (h) to the extent it is necessary in such litigation to describe the facts underlying the asserted breach);
(i) enter into any discussions, negotiations, arrangements or negotiate understandings with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change to the matters set forth in capital structure, recapitalization, dividend or similar transaction involving the Company;this Section 2; or
(viij) take any action which could cause or require the Company or any Affiliate of the Company to make a public announcement regarding any of the foregoing, seek or request permission to advisedo any of the foregoing, encouragemake any request to amend, support waive or influence terminate any person provision of this Section 2 (including, without limitation, this Section 2(j)), or make or seek permission to make any public announcement with respect to any of the voting foregoing. Notwithstanding anything in this Agreement to the contrary (including, for the avoidance of doubt, Section 2(f)(ii) hereof), prior to the Termination Date, representatives of members of the Marcato-Oskie Group shall be permitted to (i) engage at reasonable intervals in non-public discussions with such members of the senior management of the Company as the Company may designate regarding any of the matters contemplated by Section 2(f)(ii) hereof so long as no member of the Marcato-Oskie Group or disposition any of its Affiliates or Associates or any of their respective employees or representatives directly or indirectly makes any disclosure of such discussions or of the content thereof (x) to any third person (other than employees or advisors of the Marcato Stockholders or the Oskie Stockholders who agree to keep such discussions and content confidential and for whose breach of such agreement the Marcato Stockholders or the Oskie Stockholders, as applicable, are responsible) or (y) publicly (it being agreed that any disclosure in any Schedule 13D filing or any amendment thereof or in any other securities law filing shall be deemed public disclosure not permitted pursuant to this Agreement even if required by law) and as long as any of the foregoing would not require the Company to make any public announcement of any such discussions or matter under any applicable law or rule of any securities exchange, (ii) publicly comment upon and solicit votes in favor of or against any item presented for stockholder approval by the Company (but for the avoidance of doubt not by any shareholder), other than the election of directors, the ratification of auditors or a proposal put forth by the Company with respect to “say-on-pay” or “say-when-on-pay” at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting stockholders of the Company’s shareholders called , (iii) publicly comment upon and solicit votes in response to a public announcement by a person the Company that the Company has entered into an agreement providing for any merger, acquisition, disposition, consolidation, recapitalization, restructuring, liquidation, dissolution, or persons other than Dolphin for business combination or extraordinary transaction in any case that requires the purpose of removing or electing directors approval of the Company; or
holders of the Common Stock, (viiiiv) make publicly comment upon any request public announcement by the Company itself that the Board of Directors of the Company has determined to explore a business combination involving the Company as a whole, which announcement did not result in whole or submit any proposal to waive, terminate or amend the terms in part from (x) a breach of this Agreement other than through non-or (y) any unsolicited offer for a business combination, and (v) in the event that any third party that is a strategic, industrial company makes a bona fide unsolicited public communications with offer to acquire the Company that would as a whole which did not be reasonably determined to trigger public disclosure obligations for any Partyresult in whole or in part from a breach of this Agreement, publicly comment upon such offer.
Appears in 1 contract
Sources: Shareholder Agreement (Lear Corp)
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder nominations for the 2014 2018 Annual General Meeting pursuant to the Company’s bylaws Memorandum and Articles of Association or (y) the date that is one hundred (100) days prior to the first anniversary of the 2017 Annual General Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special an extraordinary general meeting of shareholders of the Companyshareholder), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock Ordinary Shares (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock Ordinary Shares in any voting trust or subject any Common Stock Ordinary Shares to any arrangement or agreement with respect to the voting of any Common StockOrdinary Shares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the appointment, election or removal of any directors (other than in accordance with Section 1 of this Agreement)directors; provided, (B) otherwise seek to control or influence the managementhowever, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company2018 Annual General Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders at any annual or special extraordinary general meeting of shareholders of the CompanyCompany or through any referendum of shareholders, or (B) make any offer or proposal (with or without conditions) with respect to any merger, scheme of arrangement, takeover offer, acquisition, recapitalization, restructuring, disposition or other than at business combination involving Starboard and the direction Company, (C) affirmatively solicit a third party to make an offer or proposal (with the consent or without conditions) with respect to any merger, scheme of the Boardarrangements, in the Dolphin Director’s capacity as a director of takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, scheme of arrangement, takeover offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to purchases the Company prior to such proposal becoming public or (E) call or seek to call an extraordinary general meeting of Common Stock expressly shareholders;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted by in Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special extraordinary general meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote the Ordinary Shares that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor (in each case, subject to Section 1(g)(iii)).
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by an Appointed Director of such person’s fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
Appears in 1 contract
Sources: Agreement (Starboard Value LP)
Standstill Provisions. (a) Dolphin JCP agrees that, from the date of this Agreement until the earlier of (x) the date that is ten thirty (1030) business calendar days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting third annual meeting of shareholders pursuant to the Company’s bylaws Bylaws to occur following the date of this Agreement or (y) twenty four (24) months from the date hereof (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates (as such terms are defined in Rule 12b-2 promulgated by the SEC under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin Exchange Act) will, and Dolphin it will cause each of such its Affiliates and Associates not to, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companyshareholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support securities of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock Shares (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as in this Agreement or any of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;their respective Affiliates or Associates);
(iviii) deposit any Common Stock Shares in any voting trust or subject any Common Stock Shares to any arrangement or agreement with respect to the voting of any Common StockShares, other than any such voting trust, arrangement or agreement solely among the members of JCP and otherwise in accordance with this Agreement;Agreement;
(viv) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person or entity, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or, except as specifically permitted in Section 1, seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;directors;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company or call or seek to call a special meeting of the Company’s shareholders, or (B) other than at the direction make any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidationacquisition, acquisition of control recapitalization, restructuring, disposition or other business combinationcombination or other significant corporate transaction, including any tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend reorganization or similar transaction involving the Company;, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company, (C) affirmatively solicit a third party, on an unsolicited basis, to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or knowingly encourage, initiate or assist any third party in making such an offer or proposal, (D) make a request for a list of the Company’s shareholders or for any books and records of the Company in JCP’s capacity as a shareholder of the Company or (E) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, other business combination or other significant corporate transaction with respect to the Company by such third party prior to such proposal becoming public;
(vi) seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; 1; or
(viii) make disclose publicly, or privately in a manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or submit advance any proposal to waiveamend, terminate modify or amend waive the terms of this Agreement; provided that JCP may make confidential requests to the Board to amend, modify or waive any provision of this Section 4, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by JCP and is made by JCP in a manner that does not require the public disclosure thereof by the Company, JCP or any other person.
(b) Notwithstanding the foregoing, nothing in this Agreement other than through non-public communications shall prohibit or restrict JCP from (i) communicating privately with the Company that Board or, with prior notice to the Board, with any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be reasonably determined to trigger expected to, require any public disclosure obligations for of such communications, (ii) communicating with shareholders of the Company and others in a manner that does not otherwise violate Section 4(a) or Section 6 or (iii) taking any Partyaction necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over JCP.
(c) For the avoidance of doubt, nothing in Section 4(a) or elsewhere in this Agreement shall be deemed to limit or restrict in any way the exercise by any New Director of his or her fiduciary duties under applicable law as a director of the Company.
Appears in 1 contract
Sources: Director Nomination Agreement (Innovative Food Holdings Inc)
Standstill Provisions. (a) Dolphin Unless otherwise approved by the Board, the Sub Lender agrees that, from the date of this Agreement until the date that is ten eighteen (1018) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws months after such date (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates Related Persons (as defined herein) nor any other persons acting under its the control or direction, nor direction of any member of the Affiliates or Associates that control or direct Dolphin Sub Lender will, and Dolphin it will cause each of its Related Persons and such Affiliates and Associates other persons not to, directly or indirectly, alone or in concert with others, in any mannermanner to:
(i) become execute any proxy card or voting instruction form in respect of any stockholders’ meeting other than the beneficial owner, as such term is defined in Rule 13d-3 proxy card and related voting instruction form being solicited by or on behalf of the Exchange ActCompany. Sub Lender shall not take any position, of more than 9.90% of make any statement or take any action inconsistent with the Common Stockforegoing;
(ii) solicit, encourage or in any way engage in any solicitation of, any proxies or written consents or conduct any non-binding referendum, or assist or participate in any way, directly or indirectly, in any solicitation of proxies or written consents or otherwise become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(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 Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in the Sub Lender (together with all Affiliates thereof ) having beneficial ownership (after giving effect to such acquisition) of more than 9.99% of the shares of Common Stock outstanding at such time (the “Percentage Ownership Limit”); provided that nothing herein will require Common Stock to be sold to the extent the Sub Lender exceeds the ownership limit under this paragraph solely as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock so long as the beneficial ownership interest of the Sub Lender does not increase thereafter (except solely as a result of further corporate actions taken by the Company);
(iv) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any rights decoupled from the underlying securities held by the Sub Lender to any person or entity not a (A) party to this Agreement, (B) member of the Board, (C) officer of the Company, or (D) an Affiliate of a member of the Sub Lender (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that the Sub Lender knows would result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial ownership interest of more than 9.9% in the aggregate of the shares of Common Stock outstanding at such time, except in a transaction approved by a majority of the entire Board;
(v) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(vi) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observertheir Affiliates, but does not include any other entities or persons not identified on Exhibit A as of the date hereofhereof or their Affiliates); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin the Sub Lender to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivvii) take any action that would be deemed, pursuant to this Agreement, to be Acting in Concert (as defined herein) with another person relating to changing or influencing the control of the Company or in connection with or as a participant in any transaction having that purpose or effect;
(viii) demand a copy of the Company’s list of stockholders or its other books and records, whether pursuant to Section 220 of the Delaware General Corporation Law or otherwise;
(ix) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Sub Lender and otherwise in accordance with this Agreement;
(v) (Ax) seek representation on or encourage the Board (other than in accordance with Section 1 removal of this Agreement) any director from the Board, including seeking or encouraging any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election Company;
(xi) take any action in support of or removal make any proposal or request that constitutes: (A) impeding or facilitating the acquisition of control of the Company by any directors (other than in accordance with Section 1 of this Agreement)person, (B) otherwise seek to control or influence the management, Board or policies causing a class of securities of the CompanyCompany to be delisted from, other than the Dolphin Director in his capacity as suchor to cease to be authorized to be quoted on, any securities exchange; or (C) instigate, support, encourage or assist any third party to do any causing a class of securities of the actions set forth in clause (ACompany to become eligible for termination of registration pursuant to Section 12(g)(4) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;Exchange Act.
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company or (B) make any offer or proposal (with or without conditions) with respect to a merger, acquisition, disposition or other business combination involving the Sub Lender and the Company, or encourage, initiate or support any other third party in any such related activity or (BC) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement communication in opposition to any Company acquisition or disposition activity approved by the Board;
(xiii) communicate with respect tostockholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act;
(xiv) otherwise publicly act to seek to influence the management, the Board or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition policies of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(viixv) acquire or agree, offer, seek or propose to adviseacquire, encourageor cause to be acquired, support ownership (including beneficial ownership) of any of the assets or influence business of the Company or any person rights or options to acquire any such assets or business from any person;
(xvi) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the voting foregoing, or disposition advise, assist, knowingly encourage or seek to persuade any Third Party to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(xvii) take any action challenging the validity or enforceability of any securities of the Company at provisions of this Section 3 or publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any annual document with the SEC or special meeting any other governmental agency or any disclosure to any journalist, member of shareholdersthe media or securities analyst) of, any intent, purpose, plan or proposal to take any action challenging the validity or enforceability of any provisions of this Section 3; or
(xviii) publicly make any request to amend, waive or terminate any provision of this Section 3 (including, without limitation, this Section 3(a)(xviii)), or make or seek permission to make any public announcement with respect to any of the foregoing, except in accordance with Section 1; provided that nothing this Agreement or as otherwise required by applicable law or as required by applicable law or stock exchange listing requirement.
(b) As used in this subsection Agreement, the terms “beneficial owner” and “beneficial ownership” shall prohibit Dolphin from taking any action during have the Standstill Period same meanings as set forth in support of Rule 13d-3 promulgated by the Dolphin Director (including engaging in a solicitation of proxies SEC under the Exchange Act; the terms “economic owner” and “economically own” shall have the same meanings as “beneficial owner” and “beneficially ownership,” except that, solely for the election purposes of clause (iv) of Section 3(a), a person will also be deemed to economically own and to be the Dolphin Directoreconomic owner of (i) all shares of Common Stock which such person has the right to acquire pursuant to the exercise of any rights in connection with any special meeting 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, without limitation, pursuant to a cash settled call option or other derivative security, contract or instrument in any way related to the Company’s shareholders called by a 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 “Related Person” shall mean, as to any person, any Affiliates or Associates of such person, and any other person with whom such person or persons such person’s Affiliates or Associates is Acting in Concert (as herein defined) or any Affiliate or Associate of such other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or 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 Partyperson.
Appears in 1 contract
Standstill Provisions. (a) Dolphin ▇▇▇▇▇▇ agrees that, from during the date term of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”)Agreement, neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will▇▇▇▇▇▇ shall not, and Dolphin will shall cause each of such its respective controlled Affiliates and Associates and each of its and their respective principals, directors, members, general partners, managers, officers and employees (collectively, “Covered Persons”) not to, in each case, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company)consents, in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities of the Common Stock Company (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Nicoya, but does not include any other entities or persons that are not identified on Exhibit A members of Nicoya as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Nicoya or other entity approved by the Company to join the “group” following the execution of this Agreement, so long as any such Affiliate or entity agrees to be bound in writing by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Nicoya and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or publicly propose nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyBoard;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the CompanyCompany or through any referendum of stockholders, (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third-party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party prior to such proposal becoming public, (E) call or seek to call a special meeting of stockholders, or (BF) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted act by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companywritten consent;
(viivi) seek to advise, knowingly encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or;
(viiivii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board;
(viii) publicly disclose any intention, plan or arrangement inconsistent with any provision of this Section 3 or publicly encourage or support any other person to take any of the actions described in this Section 3 that would not ▇▇▇▇▇▇ is restricted from doing.
(b) Except as expressly provided in Section 1 and Section 3(a), ▇▇▇▇▇▇ shall be reasonably determined entitled to trigger public disclosure (i) vote the Common Stock that it beneficially owns as it determines in its sole discretion and (ii) subject to Section 13, disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company on any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor.
(c) Nothing in Section 3(a) shall be deemed to limit the exercise in good faith by the Nicoya Appointee (or any Nicoya Replacement Directors, as applicable) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and ▇▇▇▇▇▇’s obligations for any Partyunder this Agreement.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Viex agrees that, that from the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations stockholder proposals for the 2014 2017 Annual Meeting pursuant to the Company’s bylaws Bylaws (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Common Stock or other securities issued by the beneficial ownerCompany, or any securities convertible into or exchangeable for Common Stock, such that Viex, together with its Affiliates and Associates (as such term is defined in Rule 13d-3 Section 3(a)) would, in the aggregate, beneficially own a number of the Exchange Act, shares in excess of more than 9.9010% of the then outstanding shares of Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board ObserverA, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Viex to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the members of Viex and otherwise in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companydirectors;
(vi) (A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, or (B) other than at the direction make any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases of Common Stock expressly permitted by Section 2(a)(iany merger, acquisition, amalgamation, recapitalization, restructuring, disposition, distribution, spin-off, asset sale, joint venture or other business combination involving the Company (an “Extraordinary Transaction”), offer, propose, or make any public statement with respect to, or encourage, solicit initiate or negotiate with support any other third party with respect toto any of the foregoing, (C) make any public communication in opposition to any Extraordinary Transaction approved by the Board or (D) call or seek to call a merger, consolidation, acquisition special meeting of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companystockholders;
(vii) seek, alone or in concert with others, representation on the Board, except as specifically permitted in this Agreement;
(viii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or3;
(viiiix) make any request or submit any proposal to waive, terminate or 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; or
(x) disclose any intention, plan or arrangement inconsistent with any provision of this Section 4.
Appears in 1 contract
Sources: Board Composition Agreement (Maxwell Technologies Inc)
Standstill Provisions. (a) Dolphin M▇▇▇▇▇▇▇▇ agrees that, from that the “Standstill Period” shall commence on the date of this Agreement until and shall terminate on the date that is ten (10) business days prior to tenth anniversary hereof.
a. ▇▇▇▇▇▇▇▇▇ agrees that, during the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any without the prior written consent of the Affiliates Board, he shall not, directly or Associates that control indirectly:
(i) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of (A) any Common Stock or direct Dolphin willor indirect rights or options to acquire (through purchase, and Dolphin will cause each exchange, conversion or otherwise) any Common Stock, excepting solely Common Stock or other Voting Securities (I) received as a result of such Affiliates and Associates not toa stock dividend, stock distribution or stock split, (II) issued by the Company to M▇▇▇▇▇▇▇▇ in connection with any reorganization or recapitalization of the Company or (III) issued by the Company in connection with any rights offering;
(ii) solicit proxies (or written consents) or assist or participate in any other way, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies (or consents written consents), 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 14A, respectively, under the Securities Exchange Act of proxies or consents 1934, as amended (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company“Exchange Act”), in each caseopposition to the recommendation or proposal of the Board, or recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise, encourage or influence any other person with respect to the voting of (or the execution of a written consent in respect of) the Common StockStock or other Voting Securities, or execute any written consent in lieu of a meeting of the holders of the Common Stock or other Voting Securities or grant a proxy with respect to the voting of the Common Stock or other Voting Securities to any person other than in accordance with to the Board or persons appointed as proxies by the Board or Gabelli or his designee pursuant to Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking III.2 hereof;
(iii) initiate, propose or submit one or more stockholder proposals or induce or attempt to induce any action during other person to initiate any stockholder proposal;
(iv) seek to call or to request the Standstill Period in support of the Dolphin Director (including engaging in call of, a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by stockholders, or make a person or persons other than Dolphin request for the purpose of removing or electing directors a list of the Company’s stockholders;
(iiiv) form, join or in any way participate in any a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to for the Common Stock (other than a “group” that includes all purpose of acquiring, holding, voting or some disposing of any securities of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this AgreementCompany;
(ivvi) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board, or consent to become a nominee for election as a member of the Board unless nominated by the Board;
(vii) seek, alone or in concert with others, to place a representative or other affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) deposit any Common Stock or other Voting Securities in any a voting trust or subject enter into any Common Stock to any other arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreementthereof except pursuant to Section III.2 hereof;
(vix) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (Aincluding beneficial ownership) seek representation on of any of the Board (other than in accordance with Section 1 of this Agreement) assets or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors business of the Company or take any other action with respect rights or options to the election acquire any such assets or removal of business from any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companyperson;
(Ax) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offerseek, propose, or make any public statement with respect to, or encouragesolicit, solicit negotiate with, or negotiate with provide any third party information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(viixi) seek to take any action, alone or in concert with any other person, advise, encouragefinance, support assist or influence participate in or encourage any person with respect to the voting take any action which is prohibited to be taken by M▇▇▇▇▇▇▇▇ or disposition any of his affiliates or associates pursuant to this Agreement, or make any securities investment in or enter into any arrangement with, any other person that engages, or offers or proposes to engage in any of the Company at any annual foregoing;
(xii) disclose publicly, or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging privately in a solicitation of proxies for manner that could reasonably be expected to become public, any intention, plan or arrangement inconsistent with the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; orforegoing;
(viiixiii) make any request or submit demand to inspect the records of the Company or to obtain a shareholders list for the Company or encourage any proposal shareholder or other persons to waivedo so;
(xiv) commence, terminate encourage, or amend support any derivative action in the terms name of the Company or any class action against the Company or any of its officers or directors; or
(xv) take any action challenging the validity or enforceability of any provisions 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 PartySection III.
Appears in 1 contract
Sources: Exchange and Standstill Agreement (Gamco Investors, Inc. Et Al)
Standstill Provisions. (a) Dolphin Each Investor agrees that, that from the date of this Agreement until the date that is ten (10) business days prior to expiration of the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates direction or Associates that control or direct Dolphin its Investor Representatives (as defined below) will, and Dolphin each Investor will cause each of such Affiliates its Affiliates, Associates and Associates Investor Representatives not to, directly or indirectly, in any manner, alone or in concert with others:
(i) become submit any stockholder proposal (pursuant to Rule 14a-8 promulgated by the beneficial owner, as such term is defined in Rule 13d-3 of SEC the Exchange ActAct or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for election to the Board (including, without limitation, by way of more Rule 14a-11 of Regulation 14A), other than 9.90% of the Common Stockas expressly permitted by Section 1 hereof;
(ii) solicit, or knowingly encourage or in any way engage in any solicitation of of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to securities of the Common Stock, Company and other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period solicitations or acting as a “participant” in support of the Dolphin Director (including engaging in a solicitation of proxies for the election recommendations of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyBoard;
(iii) formadvise, join knowingly encourage, support or in influence any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) person with respect to the Common Stock (other than a “group” that includes all voting or some disposition of any securities of the persons identified on Exhibit A and the Board ObserverCompany at any annual or special meeting of stockholders, but does not include any other entities except as expressly permitted in Section 1, or persons not identified on Exhibit A as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin seek to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreementdo so;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Affiliates or Associates of the Investors and otherwise in accordance with this Agreement;
(v) (A) seek seek, alone or in concert with others, representation on the Board Board, except as expressly permitted in Section 1;
(other than in accordance with Section 1 of this Agreementvi) seek or knowingly encourage any person to submit nominations in furtherance of a “contested solicitation” or take other applicable action for the election or removal of directors with respect to the Company;
(vii) form or join in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Company Exchange Act, with respect to any Common Stock, or take any other action with respect that would divest the Investors of the ability to the election vote or removal cause to be voted its shares of any directors (other than Common Stock in accordance with Section 1 of this Agreement), ;
(Bviii) otherwise act alone or in concert with others to (A) control or seek to control the management or influence the management, Board or policies of the Company, other than the Dolphin Director (excluding actions (x) expressly permitted in Section 1 and (y) taken by an Investor Nominee in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s her capacity as a director of the Company in the exercise of his or her fiduciary duties) or (B) seek to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or Amended and Restated By-Laws (the “By-Laws”), or other actions, that may impede or facilitate the acquisition of control of the Company by any person;
(ix) with respect to purchases the Company or the Common Stock, make any communication or announcement (other than in the ordinary course of its business on a confidential basis to their investors) stating how its shares of Common Stock expressly permitted by Section 2(a)(i), offer, proposewill be voted, or the reasons therefor or otherwise communicate pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act;
(x) make any public statement or public disclosure regarding any intent, purpose, plan or proposal with respect toto (i) the Company, the Board (including, without limitation, any change in structure, number or encouragecomposition), solicit the Company’s management (including, without limitation, any change in management), policies or negotiate with affairs or any third party with respect toof its securities or assets, a (ii) any merger, consolidation, acquisition of control or other control, business combination, tender or exchange offer, purchase, sale or transfer of the Company or its subsidiaries, businesses, assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend dividend, share repurchase or similar other extraordinary transaction involving (each such merger or other transaction in this clause (ii), an “Extraordinary Transaction”); provided, that the Companyrestrictions in this sub clause (ii) shall not apply in the event that the Company solicits proxies with respect to an Extraordinary Transaction, or (iii) this Agreement, that is inconsistent with the provisions of this Agreement, including, without limitation, with respect to clauses (i), (ii) and (iii) any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(viixi) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any shares of Common Stock or other securities issued by the Company, or any securities convertible into or exchangeable for Common Stock, which would result in the ownership, control or other beneficial ownership interest in more than 9.99% of the then-outstanding shares of the Common Stock in the aggregate among the Investors;
(xii) acquire or agree, offer, seek or propose to adviseacquire, encourageor cause to be acquired, support ownership (including beneficial ownership) of any of the assets or influence business of the Company or any rights or options to acquire any such assets or business from any person;
(xiii) other than at the direction of the Board or any committee thereof, seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to to, any Extraordinary Transaction involving the voting Company, its subsidiaries or disposition of its business, assets or securities, or any securities change in structure, number or composition of the Company at any annual Board or special meeting of shareholders, except change in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support management of the Dolphin Director (including engaging in Company, whether or not any such transaction or change involves a solicitation change of proxies for the election control of the Dolphin DirectorCompany, in each case;
(xiv) enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or knowingly encourage, any other person in connection with any special meeting of the Company’s shareholders called by a foregoing, or make any investment in or enter into any arrangement with any other person that engages, or persons other than Dolphin for the purpose of removing offers or electing directors proposes to engage, in any of the Companyforegoing;
(xv) otherwise take, or solicit, cause or knowingly encourage others to take, any action inconsistent with any of the foregoing; or
(viiixvi) take any action challenging the validity or enforceability of this Section 2 or this Agreement, or request the Company or the Board to amend or waive any provision of this Section 2 (provided that the Investors may make confidential requests to the Board to amend or waive any provision of this Section 2, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Investors and is made by the Investors in a manner that does not require the public disclosure thereof by the Company, Investors or submit any proposal to waive, terminate or amend the terms other person).
(b) For purposes of this Agreement other than through nonthe term “Standstill Period” shall mean from the date of this Agreement until the earlier of (i) the date that is twenty-public communications with five (25) business days prior to the deadline for the submission of stockholder nominations for the 2018 Annual Meeting pursuant to the By-Laws and (ii) the termination of this Agreement pursuant to Section 8(b) due to a material breach of this Agreement by the Company. In the event that the Company does not wish to nominate the Investor Nominees for re-election at the Company’s 2018 Annual Meeting, the Company shall provide written notice to the Investors no later than thirty (30) days prior to the initial date on which the submission of stockholder nominations for the 2018 Annual Meeting are permitted pursuant to the By-Laws. For the avoidance of doubt, and notwithstanding anything herein to the contrary, nothing in this Section 2 or elsewhere in this Agreement shall be deemed to in any way restrict, limit or prevent (i) the Investors from responding to or complying with a validly issued legal process that would the Investors did not be reasonably determined initiate, encourage, aid or abet; (ii) the Investors from communicating, on a confidential basis, with their attorneys, accountants or financial advisors; (iii) the Investors from (A) bringing litigation, in good faith, to trigger public disclosure obligations for enforce the provisions of this Agreement or (B) making counterclaims, in good faith, with respect to any Partyproceeding initiated by, or on behalf of, the Company against the Investors with respect to this Agreement or the Investors from selling or tendering any shares of the Company.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Each member of Starboard agrees that, from the date of this Agreement until the earlier of (i) the date that is ten (10) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2012 Annual Meeting pursuant or (ii) the date that is seventy-five (75) days prior to the Company’s bylaws first anniversary of the 2011 Annual Meeting (the “Standstill Period”), neither Dolphin, it nor any of its Affiliates or Associates (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended or the rules or regulations thereunder (the “Exchange Act”)) under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin direction will, and Dolphin it will cause each of such its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) become the purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial owner, ownership (as such term is defined in determined under Rule 13d-3 of promulgated under the Exchange Act) of any Common Stock or other securities issued by Company (or any rights, options or other securities convertible into or exercisable or exchangeable for such securities any obligations measured by the price or value of any securities of the Company or any of its affiliates, including any swaps or other derivative arrangements whether or not any of the foregoing would give rise to beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) ) , if in any such case, immediately after the taking of such action, Starboard would, in the aggregate, collectively beneficially own, or have an economic interest in, more than 9.9014.99% of the then outstanding shares of Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at annual or special meeting of stockholders, except in accordance with Section 1;
(iv) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some lesser number of the persons identified on Exhibit A and the Board Observeras part of Starboard, but does not include any other entities or persons members who are not currently identified on Exhibit A as part of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreementsolely among the members of Starboard;
(v) (Avi) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A1) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company, Company or (B2) other than at the direction make any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases a merger, acquisition, disposition or other business combination involving Starboard and the Company; provided, however, that nothing herein will limit the ability of (1) any member of Starboard, or its respective Affiliates and Associates, to vote its shares of Common Stock expressly permitted by Section 2(a)(i), offer, propose, on any matter submitted to a vote of the stockholders of the Company or make (2) Starboard to announce its opposition to any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, Board approved publicly announced proposals related to a merger, consolidationacquisition, acquisition disposition of control all or substantially all of the assets of the Company or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction combination involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition Company requiring a vote of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors stockholders of the Company; or
(viii) make seek, alone or in concert with others, representation on the Board, except as specifically contemplated in Section 1.
(b) Notwithstanding anything contained herein to the contrary, except as expressly provided in Section 1, each member of Starboard shall be entitled to:
(i) vote their shares on any request other proposal duly brought before the 2011 Annual Meeting, or submit otherwise vote as each member of Starboard determines in its sole discretion;
(ii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by stockholders at the 2012 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Amended and Restated Bylaws;
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to waive, terminate or amend be voted on by the terms stockholders of this Agreement the Company (other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any Partyelection of directors) and the reasons therefor.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees The Iroquois Parties agree that, from the date of this Agreement until through the date (“Later Date”) that is ten the later of (10i) business days prior September 30, 2024 or (ii) the date on which neither of the Iroquois Appointees (nor their respective designated replacements) continues to serve on the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws Board (the date of this Agreement through such Later Date, “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willIroquois Parties shall not, and Dolphin will shall cause each of such their controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, Iroquois Parties but does not include any other entities or persons that are not identified on Exhibit A Iroquois Parties as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin the Iroquois Parties to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the Iroquois Parties and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than except as specifically permitted in accordance with Section 1 of this Agreement), (B1) otherwise seek in each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent the Iroquois Parties or their respective controlled Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates other than in connection with the Notice of Proposed Action, the 2022 Annual Meeting and any special meeting of Applicable Meeting so long as such actions do not create a public disclosure obligation for the Iroquois Parties or the Company’s shareholders called , are not publicly disclosed by the Iroquois Parties or their representatives, controlled Affiliates or Associates and are undertaken on a person or persons other than Dolphin for the purpose of removing or electing directors of the Companybasis reasonably designed to be confidential;
(v) seek, alone or in concert with others, representation on the Board except as specifically permitted in Section 1;
(vi) (A) make any proposal for consideration by shareholders stockholders at any Applicable Meeting, or solicit the written consents of stockholders in lieu of any annual or special meeting in connection with any proposal, including, for the avoidance of shareholders doubt, any election of candidates to the Board if such nomination has not been previously approved by the Board or any proposal to amend the Company’s Articles of Incorporation or By-Laws, (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Iroquois Parties and the Company, (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or publicly encourage, solicit initiate or negotiate with support any third party with respect toin making such an offer or proposal, or (D) call or seek to call a merger, consolidation, acquisition special meeting of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companystockholders;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual Applicable Meeting with respect to the appointment, election or special meeting removal of shareholdersdirector(s), except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis), directly or indirectly, by purchase or otherwise, any security of the Company, including any option, warrant, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that, inter alia, includes, relates to or derives any significant part of its value from a change in the market price or value of the securities of the Company, which would result in the Iroquois Parties beneficially owning 14.9% or more of the then-outstanding shares of Common Stock in the aggregate;
(ix) demand a copy of any books and records of the Company under the Nevada Revised Statutes 78.105 or equivalent state or federal laws;
(x) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications communication with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party; or
(xi) make, publish, or communicate, or knowingly encourage any controlled Affiliate or Associate of the Iroquois Parties or any other third party to make, publish, or communicate, either orally or in writing, any disparaging remarks, comments, or statements in a public manner that would reasonably be expected to damage the business or reputation of the Company or any of its directors, officers, employees, or advisors; provided, however, that during the Standstill Period neither the Company nor any of its subsidiaries or any of their respective controlled Affiliates, Associates, directors, officers, employees, agents or advisors shall make, publish, or communicate, or knowingly encourage any other third party to make, publish, or communicate, either orally in writing, any disparaging remarks, comments or statements in a public manner that would reasonably be expected to damage the business or reputation of the Iroquois Parties or any of their respective Affiliates, Associates, directors, officers, employees, members, managers, partners or advisors; provided, further, that each Party shall be permitted to make objective statements that reflect such Party’s view with respect to factual matters concerning specific acts or determinations of the other Party occurring after the date of this Agreement, as long as such statements do not violate any other provision of this Agreement, and to respond to any public statement made by the other Party of the nature described in this Section 2(a)(xi) if such statement by the other Party was made in breach of this Agreement.
(b) Notwithstanding anything in Section 2(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict the Iroquois Parties from: (i) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; (ii) communicating with stockholders of the Company and others in a manner that does not otherwise violate Section 2(a) or Section 12; or (iii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over the Iroquois Parties.
(c) Nothing in Section 2 or elsewhere in this Agreement shall be deemed to limit the exercise in good faith by any member of the Board of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 1 contract
Standstill Provisions. (a) Dolphin RC Ventures agrees that, from the date of this Agreement until the earlier of (x) the date that is ten thirty (1030) business calendar days prior to the deadline for the submission of shareholder director nominations by shareholders for the 2014 Company’s 2023 annual meeting of shareholders (the “2023 Annual Meeting Meeting”) pursuant to the Company’s bylaws By-Laws or (y) the date that is one hundred twenty (120) calendar days prior to the first anniversary of the 2022 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willRC Ventures shall not, and Dolphin will shall cause each of such its Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become acquire, seek or propose (publicly or otherwise) or agree to acquire, beneficial ownership, directly or indirectly and acting alone or in concert, whether by purchase, tender or exchange offer, through the beneficial owneracquisition of control of another person, as such term is defined in Rule 13d-3 by joining a partnership, limited partnership, syndicate or other group, or through swap or hedging transactions or otherwise, any securities of the Exchange ActCompany or any rights decoupled from the underlying securities of the Company that would result in RC Ventures (together with its Affiliates and Associates) owning, controlling or otherwise having any beneficial ownership interest in or aggregate economic exposure of more than 9.9019.9% of the outstanding shares of Common Stock;
(ii) make, engage in or in any way participate in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents to vote (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders shareholders), or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities for the election of individuals to the Board or to approve shareholder proposals, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) form, join join, or in any way knowingly participate or enter into any discussions or negotiations with any person not a party to this Agreement to participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock Company or its securities (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of RC Ventures, but does not include any other entities or persons that are not identified on Exhibit A members of RC Ventures as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin RC Ventures to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) agree, attempt, seek or propose to deposit any shares of Common Stock in any voting trust or similar arrangement or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common StockStock (including by granting any proxy, consent or other authority to vote), other than any such voting trust, arrangement or agreement solely among the members of RC Ventures and otherwise in accordance with this Agreement;
(v) (Aseek or submit, or knowingly encourage any person to seek or submit, nomination(s) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than except as specifically permitted in accordance with Section 1 of this Agreement1), (B) otherwise seek in each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent RC Ventures or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the Company’s shareholders called by 2023 Annual Meeting so long as such actions do not create a person public disclosure obligation for RC Ventures or persons other than Dolphin for the purpose of removing or electing directors of the CompanyCompany and are undertaken on a confidential basis;
(vi) (A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) make any offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, business combination or other than at extraordinary transaction involving the direction Company, (C) solicit a third party to make an offer or proposal (with the consent of the Boardor without conditions) with respect to any merger, in the Dolphin Director’s capacity as a director of tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, other business combination or other extraordinary transaction involving the Company, or encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, business combination or other extraordinary transaction with respect to purchases the Company by such third party or (E) call, seek or request (publicly or otherwise) a special meeting of Common Stock expressly shareholders (whether or not such meeting is permitted by Section 2(a)(ithe Charter or By-Laws), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to seek, alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(viii) advise, knowingly encourage, knowingly support or knowingly influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersshareholders with respect to (A) the appointment, election or removal of director(s), except in accordance with Section 1; provided that nothing , or (B) any matter other than the appointment, election or removal of director(s), except (1) in this subsection shall prohibit Dolphin from taking accordance with the recommendations of both ISS and Glass Lewis or (2) with respect to any action during the Standstill Period in support publicly announced proposals relating to a merger, acquisition, disposition of all or substantially all of the Dolphin Director (including engaging in a solicitation of proxies for the election assets of the Dolphin Director) in connection with any special meeting Company or other business combination involving the Company requiring a vote of stockholders of the Company’s shareholders called by ;
(ix) make a request for any shareholder list or other Company books and records;
(x) enter into any discussions, negotiations, understandings or agreements (whether written or oral) with respect to any action that RC Ventures is prohibited from taking under this Section 2 or knowingly encourage any third person or persons other than Dolphin for the purpose of removing or electing directors of the Companyto take any action that RC Ventures is prohibited from taking under this Section 2; or
(viiixi) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), RC Ventures shall be entitled to (i) vote any shares of Common Stock that it beneficially owns as RC Ventures determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to be voted on by the shareholders of the Company and the reasons therefor.
(c) Notwithstanding anything in Section 2(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict RC Ventures from (i) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating with shareholders of the Company and others in a manner that does not otherwise violate and is not inconsistent with Section 1(e)(ii), Section 2(a) or Section 12, or (iii) taking any action necessary (upon the advice of outside legal counsel) to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over RC Ventures (provided, that, to the extent practicable, RC Ventures will provide the Company with notice of any such requirement to the extent RC Ventures believes, upon the advice of outside legal counsel, RC Ventures is required to take any action inconsistent with this Agreement pursuant to clause (iii) of this Section 2(c) prior to taking any such action).
(d) Nothing in Section 2 or elsewhere in this Agreement shall be deemed to limit the exercise in good faith by any New Director (or a Replacement Director) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the notice deadline under the Bylaws (as the same may be amended from time to time) for the submission of shareholder stockholder nominations of director candidates for election to the 2014 Board at the 2027 Annual Meeting pursuant of Stockholders of the Company (the “2027 Annual Meeting”) or (y) the date that is one hundred (100) days prior to the Company’s bylaws first anniversary of the 2026 Annual Meeting (the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such Affiliates and Associates Covered Person not to, in each case, directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company)consents, in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities of the Common Stock Company (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereofhereof (the “Starboard Group”)); provided, however, that that, following the execution of this Agreement, nothing herein shall limit the ability of an Affiliate of Dolphin any person or entity to join the “group” following the execution of Starboard Group in connection with purposes and actions that are permissible for Starboard under this Agreement, Section 2(a) so long as any such Affiliate person or entity agrees in writing to be bound by the terms and conditions of this Agreement;
(iviii) deposit any Common Stock Shares in any voting trust or subject any Common Stock Shares to any arrangement or agreement with respect to the voting of any Common StockShares, other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or knowingly encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with any special meeting of the 2027 Annual Meeting, so long as such actions do not create a public disclosure obligation for Starboard or the Company, are not publicly disclosed by Starboard or its representatives, Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(v) (A) make any proposal for consideration by shareholders stockholders at or in connection with any annual Stockholder Meeting or through any referendum of stockholders, (B) publicly comment on any third-party proposal regarding any merger, tender (or exchange) offer, takeover offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company or any of its subsidiaries by such third party prior to such proposal becoming public, or (C) call or seek to call a special meeting of shareholders of the Companystockholders;
(vi) seek, alone or (B) other than at the direction or in concert with the consent of others, representation on the Board, except as specifically permitted in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company1;
(vii) seek to advise, knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersStockholder Meeting, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend any of the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 and Section 2(a), Starboard shall be entitled to (i) vote any of the Common Shares that it beneficially owns as it determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor.
(c) Nothing in Section 2(a) shall be deemed to limit the exercise in good faith by any New Director (or any Replacement Director or Starboard Designee Replacement Director) of such person’s fiduciary duties solely in such person’s capacity as a director of the Company and in a manner consistent with such person’s and Starboard’s obligations under this Agreement.
(d) Subject to Sections 12 and 13, nothing in Section 2(a) shall prohibit Starboard from making or issuing, in any form or manner, any proposal or public statement regarding, concerning or relating to the Company, including, without limitation, the Company’s subsidiaries and its and their officers, directors, employees and representatives; provided, that, (i) any such proposal is not being submitted by Starboard at or in connection with any Stockholder Meeting, (ii) prior to making or issuing any such public statement or proposal, Starboard shall be required to (A) share such public statement or proposal with the Company (including, at the Company’s option, at a meeting of the Board specifically called to hear and discuss any such statement or proposal with Starboard, which Starboard shall join and which the Company shall promptly schedule and hold no later than five (5) business days following Starboard informing the Company of its intent to make or issue a public statement or proposal, provided, that, if disclosure of such public statement or proposal is required by law or the rules of any stock exchange, the Company shall promptly schedule and hold such meeting no later than one (1) business day following Starboard informing the Company of its intent to make or issue a public statement or proposal, provided, further, that this Section 2(d) shall not prevent any of the Parties from complying with any law or the rules of any stock exchange, and (B) take into consideration the Company’s feedback with respect to such public statement or proposal.
Appears in 1 contract
Standstill Provisions. (a) Dolphin agrees that, from The standstill period (the “Standstill Period”) begins on the date of this Agreement and shall extend until the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for directors for the 2014 2021 Annual Meeting pursuant to the Company’s bylaws Amended and Restated Bylaws of the Company (as may be amended from time to time, the “Bylaws”); provided that, if the Board shall offer to nominate the New Investor Director for election to the Board at the 2021 Annual Meeting and the New Investor Director agrees to stand for election to the Board at the 2021 Annual Meeting, then the Standstill Period shall be automatically extended for such period as the New Investor Director shall remain on the Board. Investor agrees that, during the Standstill Period”), neither Dolphin, Investor nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin their respective principals, directors, general partners, officers, employees and agents and representatives acting on their behalf will, and Dolphin Investor will cause each of such its Affiliates and Associates and their respective principals, directors, general partners, officers, employees and agents and representatives acting on their behalf not to, directly or indirectly, in any manner, alone or in concert with others:
(i) become acquire, offer, seek or agree to acquire, by purchase or otherwise, or direct others in the acquisition of, any securities issued by the Company or securities convertible into or exchangeable for the Company Common Stock (or any rights decoupled from the underlying securities) or assets of the Company, or rights or options to acquire any securities issued by the Company or securities convertible into or exchangeable for the Company Common Stock (or rights decoupled from the underlying securities) or assets of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to securities issued by the Company or securities convertible into or exchangeable for the Company Common Stock (or rights decoupled from the underlying securities) that are settled by delivery of the Company Common Stock or assets of the Company, in the case of each of the foregoing, only if such action would result in Investor, together with its Affiliates and Associates, having an aggregate beneficial owner, ownership (as such term is defined in determined under Rule 13d-3 promulgated under the Exchange Act but treating all shares underlying options or synthetic derivatives as outstanding whether or not then exercisable) of greater than twelve and one-half percent (12.5%) of the Exchange Act, then-outstanding Company Common Stock immediately following the consummation of more than 9.90% such transaction; provided that nothing herein will require Company Common Stock to be sold to the extent that Investor exceeds the ownership limit under this clause 2(a)(i) as the result of a share repurchase or similar Company action that reduces the number of outstanding shares of the Company Common Stock;
(ii) engage in any solicitation short sale, purchase of proxies any derivative security, including any purchase, sale or consents grant of any option, warrant, convertible security, stock appreciation right, or become a other similar right (including any put or call option or “participantswap” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, transaction with respect to the Common Stock, any security (other than a broad-based market basket or index)) or enter into any derivative or other agreement, arrangement or understanding that h▇▇▇▇▇ or transfers, in accordance with Section 1 whole or in part, any securities that includes, relates to or derives any significant part of this Agreement; provided that nothing its value from a change in this subsection shall prohibit Dolphin from taking the market price or value of any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iii) initiate, effect or participate in any way in, or seek to offer or propose to effect, cause or participate in any way in, any tender or exchange offer, merger, consolidation, acquisition, sale of all or substantially all assets or sale, spinoff, splitoff or other similar separation of one or more business units, scheme of arrangement, plan of arrangement, business combination transaction, extraordinary dividend, significant stock repurchase, recapitalization, restructuring, reorganization, liquidation, dissolution or issuance of the Company’s equity or equity equivalent securities (including in a PIPE, convertible note, convertible preferred security or similar structure) or other extraordinary transaction involving the Company or any of its subsidiaries or joint ventures or any of their respective securities or a material amount of any of their respective assets or businesses (each, an “Extraordinary Transaction”) or make, directly or indirectly, any private proposal, either alone or in concert with others, to the Company or the Board that would reasonably be expected to require the Company or Investor to make public disclosure (of any kind) regarding an Extraordinary Transaction; provided that this clause 2(a)(iii) shall not restrict: (A) the tender (or failure to tender) by Investor or any of its Affiliates of any securities of the Company into any tender or exchange offer by a Third Party (as hereinafter defined); (B) the vote for or against any Extraordinary Transaction by Investor or any of its Affiliates of any securities of the Company; or (C) the receipt of any consideration by Investor or any of its Affiliates on the same basis as other stockholders of the Company in connection with any Extraordinary Transaction;
(iv) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) or seek any form of proxy with respect to the removal, election or appointment of any person to, or representation of any person on, the Board, or becoming a participant with a Third Party in any solicitation of any such proxies (including a “withhold” or similar campaign) or making statements regarding how Investor intends to vote, or the reasons therefor with respect to a proposal being voted on by stockholders, or instructing or recommending to other stockholders how to vote with respect to a proposal being voted on by stockholders or otherwise communicate pursuant to Rule 14a-1(1)(2)(iv) under the Exchange Act;
(v) form, join join, act in concert with, or in any way participate in any partnership, limited partnership, syndicate or other group (including without limitation, a “group” (within the meaning of as defined under Section 13(d)(313(d) of the Exchange Act) with respect to any securities of the Common Stock Company (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observerattached hereto, but does not include any other entities or persons not identified on Exhibit A as of the date hereofhereof (any such person, a “Third Party”)); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Investor to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivvi) agree, attempt, seek or propose to deposit any Common Stock securities of the Company in any voting trust or similar arrangement, or subject any Common Stock securities of the Company to any arrangement or agreement with respect to the voting of any Common Stockthereof, other than granting proxies in solicitations approved by the Board and other than any such voting trust, arrangement or agreement solely among Investor, Affiliates or Associates of Investor and otherwise in accordance with this Agreement; provided that any such Affiliate or Associate agrees to be bound by the terms and conditions of this Agreement;
(vvii) (A) seek, alone or in concert with others, or submit, or knowingly encourage any person or entity to seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit submit, nominations in furtherance of a “contested solicitation” for the election or removal of directors of the Company’s directors, except as specifically contemplated in Section 1 hereof, (B) request that, or knowingly encourage any person to request that, the Company call any meeting of stockholders, (C) conduct, or take knowingly encourage, advise or influence any other action person or knowingly assist any person in so encouraging, advising or influencing any person with respect to the election conducting any type of referendum, binding or removal of any directors non-binding (other than such encouragement, advice or influence that is consistent with the Company’s management’s recommendation in accordance connection with Section 1 of such matter or otherwise specifically permitted under this Agreement), or (BD) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as suchpresent, or (C) instigateknowingly encourage any person to present, support, encourage or assist any third party to do matter at any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors stockholders of the Company;
(viii) alone or in concert with others, make any public disclosure, communication, announcement or statement regarding any intent, purpose, plan, proposal or request with respect to (A) make controlling, changing or influencing the Board, the Company, its management, policies or affairs, any of its securities or assets or any of its businesses or strategy that, in each case, would be inconsistent with the provisions of this Agreement, including, without limitation, any public disclosure, communication, announcement or statement regarding any intent, purpose, plan, proposal for consideration by shareholders at or request relating to any annual change in the number of directors or special meeting the filling of shareholders any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company, (C) any other material change with respect to the Board, the Company, its management, policies or affairs or any of its securities, assets, business, corporate or governance structure (including with respect to an Extraordinary Transaction), or this Agreement, that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any term of this Agreement (including the provisions of this Section 2) or take any action that could require the Company to make any public disclosure relating to any such intent, purpose, plan, proposal or condition, (D) any waiver, amendment or modification to the Company’s Amended and Restated Certificate of Incorporation or the Bylaws, or to other actions by the Company that may impede the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) make any request for a stockholder list of materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law (the “DGCL”) or other statutory or regulatory provisions providing for stockholder access to books and records;
(x) commence, institute, solicit, encourage, support, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this Section 2, including any action challenging the validity or enforceability of this Section 2 or this Agreement; provided, however, that for the avoidance of doubt the foregoing shall not prevent Investor, its Affiliates or Associates from (A) bringing litigation to enforce the provisions of this Agreement, (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or making counterclaims with respect to purchases any proceeding initiated by, or on behalf of, the Company against Investor, its Affiliates or Associates, (C) bringing bona fide commercial disputes that do not relate to the subject matter of Common Stock expressly permitted by Section 2(a)(ithis Agreement or (D) exercising statutory appraisal, dissenters or similar rights under the DGCL;
(xi) enter into any negotiations, arrangements, discussions, agreements or understandings with (whether written or oral), offeror advise, proposefacilitate, finance (through equity, debt or otherwise), assist, solicit, encourage or seek to persuade, any Third Party to take or cause any action or make any statements inconsistent with any of the foregoing, or make any public statement investment in or enter into any arrangement with respect toany other person that engages, or encourageoffers or proposes to engage, solicit in any of the foregoing, or negotiate otherwise take or cause any action or make any statements inconsistent with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companyforegoing; or
(viiixii) make disclose any request intention, plan or submit arrangement inconsistent with any proposal to waive, terminate or amend the terms provision of this Agreement other than through non-public communications Section 2.
(b) Subject to complying with its obligations under Sections 2(a) and 12 hereof, Investor may engage in any private discussions with the Company that Company’s senior management or any member of the Board so long as such private communications would not be reasonably determined to trigger public disclosure obligations for any Partysuch party.
(c) Nothing in this Section 2 shall be deemed to limit the exercise in good faith by the New Investor Director of his fiduciary duties solely in his capacity as a director of the Company and in a manner consistent with his and Investor’s obligations under this Agreement.
Appears in 1 contract
Standstill Provisions. (a) Dolphin Starboard agrees that, from the date of this Agreement until the earlier of (x) the date that is ten fifteen (1015) business days prior to the deadline for the submission of shareholder stockholder nominations for the 2014 2020 Annual Meeting pursuant to the Company’s bylaws Amended & Restated Certificate of Incorporation or (y) the date that is one hundred (100) days prior to the first anniversary of the 2019 Annual Meeting (and as may be extended as a result of the exercise of the Continuation Option, the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStarboard shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates and the Starboard Appointee (and any Replacement Director thereof who is not Independent of Starboard) not to, in each case directly or indirectly, in any manner:
(i) become the beneficial ownerengage, as such term is defined in Rule 13d-3 of the Exchange Actdirectly or indirectly, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to shares of the Common Stock Company’s common stock or any other class or series of stock of the Company (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observermembers of Starboard, but does not include any other entities or persons that are not identified on Exhibit A members of Starboard as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin Starboard to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock Stock, Series B Preferred Shares or any other securities of the Company in any voting trust or subject any shares of Common Stock or any other securities of the Company to any arrangement or agreement with respect to the voting of any shares of Common Stock, Series B Preferred Shares or any other securities of the Company (including by granting any proxy, consent or other authority to vote), other than any such voting trust, arrangement or agreement solely among the members of Starboard and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the CompanyBoard; provided, other than the Dolphin Director in his capacity as suchhowever, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection Agreement shall prohibit Dolphin prevent Starboard or its Affiliates or Associates from taking any action during the Standstill Period actions in support furtherance of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) identifying director candidates in connection with the 2020 Annual Meeting, or any special subsequent annual meeting of stockholders to the Companyextent Starboard has exercised the Continuation Option, so long as such actions do not create a public disclosure obligation for Starboard or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s shareholders called by a person or persons other than Dolphin for normal practices in the purpose of removing or electing directors of the Companycircumstances;
(A) make any proposal for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the Company or through any action by written consent of stockholders or referendum of stockholders of the Company, or (B) other than at the direction make any offer or proposal (with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or without conditions) with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidationscheme of arrangement, acquisition of control or other business combinationtakeover, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structureacquisition, recapitalization, dividend restructuring, disposition or similar other business combination or extraordinary transaction (each, an “Extraordinary Transaction”) involving the Company and/or its Affiliates, (C) affirmatively solicit a third party to make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction involving the Company, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any Extraordinary Transaction with respect to the Company prior to such proposal becoming public or (E) call or seek to call a special meeting of stockholders or act by written consent;
(vi) seek, alone or in concert with others, representation on the Board or removal of any member of the Board, except as specifically permitted in Section 1;
(vii) seek to advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersstockholders or in connection with any consent solicitation, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(b) Except as expressly provided in Section 1 or Section 2(a), Starboard shall be entitled to (i) vote the shares of the Company’s common stock or any other class or series of stock of the Company, including the Series B Preferred Shares, that it beneficially owns as Starboard determines in its sole discretion and (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company and the reasons therefor (in each case, subject to Section 1(c)(iii)).
(c) During the period beginning fifteen (15) days prior to the expiration of the Standstill Period and ending at 11:59 PM ET on the day that is three (3) business days prior to the expiration of the Standstill Period (the “Continuation Deadline”), Starboard may, at its sole discretion and so long as no Resignation Event has occurred (the “Continuation Option”), provide written notice (the “Continuation Notice”) to the Company of Starboard’s determination to continue the Standstill Period for all purposes of this Agreement until the earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the Second Proximate Annual Meeting of Stockholders pursuant to the Company’s Amended and Restated Certificate of Incorporation or (y) the date that is one hundred (100) days prior to the first anniversary of the Next Proximate Annual Meeting; provided, however, the Continuation Option shall only be exercisable by Starboard twice (prior to the expiration of the Standstill Period prior to the 2020 Annual Meeting of Stockholders and, assuming the Continuation Option was exercised prior to the expiration of the Standstill Period prior to the 2020 Annual Meeting of Stockholders, prior to the expiration of the Standstill Period prior to the 2021 Annual Meeting of Stockholders) and such Continuation Option shall thereafter terminate. If Starboard provides a Continuation Notice, then the Standstill Period shall be automatically extended as set forth in the previous sentence of this Section 2(c), and, subject to their consent to serve and the other requirements set forth in Sections 1(a)(v), 1(c)(iv) and 1(c)(v) and so long as no Resignation Event has occurred, the Board and all applicable committees of the Board shall take all necessary actions to nominate the Appointed Directors (or any Replacement Director(s), as applicable) for election as directors at the Next Proximate Annual Meeting and recommend, support and solicit proxies for the election of the Appointed Directors (or any Replacement Director(s), as applicable) at the Next Proximate Annual Meeting in the same manner as it recommends, supports, and solicits proxies for the election of all other directors. For the avoidance of doubt, Starboard shall be permitted to exercise a Continuation Option prior to the applicable Continuation Deadline, as set forth under this Section 2(c), in connection with the Next Proximate Annual Meeting, so long as no Resignation Event has occurred. In the event that Starboard does not exercise the Continuation Option prior to the applicable Continuation Deadline, the Standstill Period shall expire pursuant to Section 2(a) and no further Continuation Option shall be available. For purposes of this Agreement, “Next Proximate Annual Meeting” shall mean the next upcoming annual meeting of stockholders (i.e. the 2020 Annual Meeting of Stockholders in respect of the initial Continuation Option and the 2021 Annual Meeting of Stockholders in respect of the second Continuation Option); and “Second Proximate Annual Meeting” shall mean the next upcoming annual meeting of stockholders after the Next Proximate Annual Meeting (i.e. the 2021 Annual Meeting of Stockholders in respect of the initial Continuation Option and the 2022 Annual Meeting of Stockholders in respect of the second Continuation Option).
Appears in 1 contract
Sources: Governance Agreement (Papa Johns International Inc)
Standstill Provisions. (a) Dolphin agrees that, from During the one-year period commencing on the date of this Agreement until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws letter agreement (the “Standstill Period”"), except pursuant to a Negotiated Transaction, neither Dolphin, Compass nor any of its Affiliates or Compass’s Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin will, and Dolphin will cause each of such Affiliates and Associates not toin any manner, directly or indirectly, in any manner:
(a) make, effect, initiate, cause or participate in (i) become any acquisition of beneficial ownership of any securities of Creative Host or any securities of any subsidiary or other affiliate of Creative Host, (ii) any acquisition of any assets of Creative Host or any assets of any subsidiary or other affiliate of Creative Host, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Creative Host or any subsidiary or other affiliate of Creative Host, or involving any securities or assets of Creative Host or any securities or assets of any subsidiary or other affiliate of Creative Host, or (iv) any “solicitation” of “proxies” (as those terms are used in the beneficial owner, as such term is defined in Rule 13d-3 proxy rules of the Securities and Exchange Act, Commission) or consents with respect to any securities of more than 9.90% of the Common StockCreative Host;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of shareholders of the Company), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(iiib) form, join or in any way participate in any a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Creative Host;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Creative Host;
(d) take any action that might require Creative Host to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses “(a)”, “(b)”, “(c)” or “(d)” of this sentence;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) publicly request or propose that Creative Host or any of Creative Host’s Associates amend, waive or consider the amendment or waiver of any provision set forth in this Section 9. Notwithstanding this Section 9, if (a)(i) the Board of Directors of Creative Host approves a transaction with any person and (ii) such transaction would result in such person beneficially owning more than 50% of the outstanding voting securities of Creative Host or all or substantially all of Creative Host’s assets, or (b) any person or “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act) with respect Act of 1934, as amended, shall have commenced or publicly announced its intention to the Common Stock (other commence a tender or exchange offer for more than a “group” that includes all or some 50% of the persons identified on Exhibit A and the Board Observeroutstanding voting securities of Creative Host, but does not include or any other entities or persons not identified on Exhibit A as securities convertible into more than 50% of the date hereof); providedoutstanding voting securities of Creative Host, howeveror any options, that nothing herein shall limit the ability of an Affiliate of Dolphin warrants or other rights to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other acquire more than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (A) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or submit nominations in furtherance of a “contested solicitation” for the election or removal of directors 50% of the Company outstanding voting securities of Creative Host, then Compass or take any other action with respect to the election or removal of any directors (other than in accordance with Section 1 of this Agreement), (B) otherwise seek to control or influence the management, Board or policies of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do Compass’s Associates shall not be prohibited thereafter from taking any of the actions set forth in clause (A) or (B) above; provided that nothing described in this subsection shall prohibit Dolphin from taking any action during Section 9.
6. The expiration of the Standstill Period in support will not terminate or otherwise affect any of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company;
(A) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, or (B) other than at the direction or with the consent of the Board, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offer, propose, or make any public statement with respect to, or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viii) make any request or submit any proposal to waive, terminate or amend the terms provisions 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 Partyletter agreement.
Appears in 1 contract
Sources: Mutual Nondisclosure Agreement (Creative Host Services Inc)
Standstill Provisions. Stockholder (a) Dolphin agrees thatin its capacity as a stockholder of the Company), on behalf of itself, its Affiliates and Associates and the other members of the Stockholder Group, hereby agree that from the date of this Agreement hereof until the date that is ten (10) business days prior to the deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to the Company’s bylaws (the “Standstill Period”)Termination Date, neither Dolphin, it nor any of its Affiliates or Associates under its control or direction, nor any the other members of the Affiliates or Associates that control or direct Dolphin Stockholder Group will, and Dolphin it will cause each of such its Affiliates and Associates and the other members of the Stockholder Group not to, directly or indirectly, in any manner:
(ia) become the beneficial ownersolicit, as such term is defined or encourage or in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) any way engage in any solicitation of of, any proxies or consents or become a “participant” in a “solicitation” as such terms are defined in Regulation 14A under the Exchange Act of proxies or consents (including, without limitation, any solicitation of consents that seeks with respect to the call of a special meeting of shareholders of the Companystockholders), in each case, with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support securities of the Dolphin Director (including engaging in Company, or call or seek to call, or encourage, support or influence anyone with respect to the call of, a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Companystockholders;
(iiib) advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of stockholders, or seek to do so;
(c) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes all or some the members of the persons identified on Exhibit A Stockholder Group and the Board Observer, Stockholder Director but does not include any other entities persons or persons not identified on Exhibit A as of the date hereofentities); provided, however, that nothing herein shall limit the ability of an Affiliate of Dolphin to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(ivd) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement in accordance with this Agreement;
(v) (Ae) seek representation on the Board (other than in accordance with Section 1 of this Agreement) or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors of with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors or with respect to the submission of any stockholder proposal (other than in accordance with Section 1 including any submission of this Agreement), (B) otherwise seek stockholder proposals pursuant to control or influence the management, Board or policies Rule 14a-8 of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyExchange Act);
(Af) (i) make any proposal (including any submission of a stockholder proposal pursuant to Rule 14a-8 of the Exchange Act) for consideration by shareholders stockholders at any annual or special meeting of shareholders stockholders of the CompanyCompany or (ii) make any recommendation, suggestion, or other statement, offer or proposal (Bwith or without conditions, publicly or otherwise) with respect to a share repurchase, dividend, self-tender or other than at the direction or with the consent of the Board, change in the Dolphin Director’s capacity as a director of the Companycapitalization, or with respect to purchases any merger, acquisition, disposition, consolidation, recapitalization, restructuring, liquidation, dissolution, or other business combination or extraordinary transaction, in the case of Common Stock expressly permitted by any of the foregoing involving the Company or any subsidiary, business, division or Affiliate of the Company or encourage or assist any person or entity in connection therewith;
(g) seek, alone or in concert with others, representation on the Board other than as contemplated in this Agreement;
(h) otherwise act, alone or in concert with others to make any statement critical of the Company, its directors or management (it being agreed that the prosecution in good faith of litigation asserting that the Company has breached its obligations under this Agreement, in and of itself, shall not constitute a violation of this clause (h) to the extent it is necessary in such litigation to describe the facts underlying the asserted breach);
(i) make any request under Section 2(a)(i220 of the Delaware General Corporation Law or other applicable legal provisions regarding inspection of books and records or other materials (including stocklist materials);
(j) institute, solicit, assist or join as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions), offerother than to enforce the provisions of this Agreement;
(k) enter into any discussions, proposenegotiations, arrangements or make any public statement with respect to, or encourage, solicit or negotiate understandings with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Company;
(vii) seek to advise, encourage, support or influence any person with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholders, except in accordance with Section 1; provided that nothing matters set forth in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanySection 2; or
(viiil) take any action which could cause or require the Company or any Affiliate of the Company to make a public announcement regarding any of the foregoing, seek or request permission to do any of the foregoing, make any request to amend, waive or submit terminate any proposal to waive, terminate or amend the terms provision of this Agreement other than through non-Section 2 (including, without limitation, this Section 2(l)) which would reasonably be expected to require public communications with disclosure thereof by the Company that would or any member of the Stockholder Group, or make or seek permission to make any public announcement with respect to any of the foregoing. For the avoidance of doubt, the foregoing clauses in this Section 2 shall not be reasonably determined to trigger public disclosure obligations for any Partyinhibit or otherwise prohibit the Stockholder Director, in his capacity as a member of the Board, from acting and performing his duties as a director of the Company in accordance with his fiduciary duties.
Appears in 1 contract
Sources: Stockholder Agreement (MAGNACHIP SEMICONDUCTOR Corp)
Standstill Provisions. (a) Dolphin agrees thatFor purposes of this Agreement, the “Standstill Period” shall be from the date of this Agreement until January 31, 2027; provided, however, that if the date that New Class III Director is ten (10) business renominated for election to the Board at the 2027 Annual Meeting by the Company and such final decision of the Board to so renominate the New Class III Director is shared with the Stockholder in writing at least thirty days prior to the advance notice deadline for the submission of shareholder nominations for the 2014 Annual Meeting pursuant to (as set forth in the Company’s bylaws Amended and Restated By-Laws) in connection with the 2027 Annual Meeting, then the Standstill Period shall be extended automatically and without further action by any Party until May 31, 2028.
(b) During the “Standstill Period”), neither Dolphin, nor any of its Affiliates or Associates under its control or direction, nor any of the Affiliates or Associates that control or direct Dolphin willStockholder shall not, and Dolphin will shall cause each of such its controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) become the beneficial owner, as such term is defined in Rule 13d-3 of the Exchange Act, of more than 9.90% of the Common Stock;
(ii) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act Act) of proxies or consents (including, without limitation, including any solicitation of consents that seeks to call a special meeting of shareholders stockholders of the Company), in each case, case with respect to the Common Stock, other than in accordance with Section 1 of this Agreement; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors securities of the Company;
(iiiii) form, join join, or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of Common Stock (other than a “group” that includes all or some of the persons identified on Exhibit A and the Board Observer, but does not include any other entities or persons not identified on Exhibit A as of the date hereof)Stock; provided, however, that nothing herein shall limit the ability of an Affiliate or Associate of Dolphin the Stockholder to join the a “group” with the Stockholder following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iviii) deposit any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to the voting of any shares of Common Stock, other than any such voting trust, arrangement or agreement solely among the members of the Stockholder and otherwise in accordance with this Agreement;
(v) (Aiv) seek representation on the Board (other than in accordance with Section 1 of this Agreementor submit, or encourage any person or entity to seek or submit, nomination(s) or submit nominations in furtherance of a “contested solicitation” for the appointment, election or removal of directors of with respect to the Company or seek, or knowingly encourage or take any other action with respect to the appointment, election or removal of any directors (other than directors, in accordance with Section 1 of this Agreement), (B) otherwise seek each case in opposition to control or influence the management, Board or policies recommendation of the Company, other than the Dolphin Director in his capacity as such, or (C) instigate, support, encourage or assist any third party to do any of the actions set forth in clause (A) or (B) above; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the CompanyBoard;
(A) make any proposal for consideration by shareholders stockholders at a Stockholder Meeting, (B) make any annual offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries (provided that nothing in this clause (B) shall prohibit the Stockholder from making any confidential proposal to the Board), (C) solicit a third party to make an offer or proposal (with or without conditions) with respect to any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company or any of its subsidiaries, or publicly encourage, initiate or support any third party in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, takeover offer, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition, or other business combination involving the Company or any of its subsidiaries by such third party (provided that this clause (D) shall not prevent such public comment after such proposal has become generally known to the public other than as a result of a disclosure by the Stockholder), (E) initiate, encourage or participate in any “vote no,” “withhold” or similar campaign with respect to any Stockholder Meeting or (F) call or seek to call a special meeting of shareholders stockholders, or initiate or participate in any stockholder action by written consent;
(vi) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any securities of the Company that represent or are convertible or otherwise exchangeable for securities in excess of 9.9% of Common Stock (the “Ownership Cap”); provided that to the extent the Stockholder (together with its Affiliates) exceeds the Ownership Cap solely by reason of any decrease in the number of the Company’s total outstanding equity securities, stock repurchases, reclassifications, stock combinations or stock cancellations by the Company and the Stockholder does not purchase or otherwise acquire, or (B) other than at the direction or with the consent of the Boardoffer, in the Dolphin Director’s capacity as a director of the Company, or with respect to purchases of Common Stock expressly permitted by Section 2(a)(i), offerseek, propose, or make agree to acquire, any public statement with respect toadditional ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any Common Stock, then such increase in the Stockholder’s beneficial ownership shall not be deemed to breach or encourage, solicit or negotiate with any third party with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in capital structure, recapitalization, dividend or similar transaction involving the Companyotherwise violate this Section 2(b)(vi);
(vii) seek seek, alone or in concert with others, representation on the Board, except as specifically provided in Section 1 (provided that nothing in this Section 2(b)(vii) shall prohibit the Stockholder from privately seeking representation on the Board as long as such private communications would not reasonably be expected to require public disclosure of such communications by the Company or the Stockholder);
(viii) advise, encourage, support or influence any person or entity with respect to the voting or disposition of any securities of the Company at any annual or special meeting of shareholdersStockholder Meeting, except as specifically provided in accordance with Section 1; provided that nothing in this subsection shall prohibit Dolphin from taking any action during the Standstill Period in support of the Dolphin Director (including engaging in a solicitation of proxies for the election of the Dolphin Director) in connection with any special meeting of the Company’s shareholders called by a person or persons other than Dolphin for the purpose of removing or electing directors of the Company; or
(viiiix) make any request or submit any proposal to waive, terminate or amend the terms of this Agreement other than through non-public communications with the Company or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(c) Nothing in Section 2(b) shall be deemed to limit the exercise in good faith by each of the New Directors of such person’s fiduciary duties solely in such person’s capacity as a director of the Company.
Appears in 1 contract