Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others: (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”); (b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise; (c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so; (d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4; (e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement; (f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement; (g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement; (h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition; (i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder; (j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR; (k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement; (l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers; (m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies; (n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or (o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 6 contracts
Sources: Purchase and Settlement Agreement (Rivernorth Capital Management, LLC), Purchase and Settlement Agreement (Tannenbaum Leonard M), Purchase and Settlement Agreement (Tannenbaum Leonard M)
Standstill. Effective from From the date of this Agreement and continuing until the later date on which a Holder beneficially owns (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) a number of PubCo Shares representing less than five percent (5%) of the certification total voting power of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders PubCo’s then issued and outstanding equity interests (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallsuch Holder shall not, and Sellers shall cause their all of its respective controlled Subsidiaries and Affiliates not to, directly or indirectlyindirectly through another Person, unless expressly invited in any manner, alone or in concert a writing with othersthe approval of the PubCo Board:
(a) solicitenter into, or knowingly encourage or in any way engage in any solicitation ofagree to enter into, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4propose, or seek or offer to do so;
(d) agree, attempt, seek enter into or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase restructuring or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, PubCo or any of their subsidiaries its Subsidiaries;
(b) initiate, knowingly encourage, make, or joint ventures in any way participate or engage in, any “solicitation” of “proxies” as such terms are used in the proxy rules of SEC to vote, or seek to advise or influence any person (other than any Permitted Transferees) with respect to the voting of, any voting securities of PubCo, in each case, other than in a manner in accordance with the recommendation of the Board and other than pursuant to Section 2.01(a) and Section 2.02(a); or
(c) publicly nominate or recommend for nomination a person for election at any shareholder meeting of the Company at which directors of the PubCo Board are to be elected, other than pursuant to Section 2.01(a) and Section 2.02(a); provided that the foregoing limitations in this Section 6.01 will (i) in no way limit the activities of any Person appointed to the PubCo Board pursuant to the terms of the Merger Agreement or this Agreement taken in his or her capacity as a director of PubCo, (ii) not require such Holder or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal its Affiliates to vote its PubCo Shares with respect to any Extraordinary Transaction matter in any given manner 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, all and (iii) seek the removal of any member of cease to apply to the Company Shareholder in the event the PubCo Board or the FSFR Board, has more than five (iv5) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementmembers.
Appears in 5 contracts
Sources: Agreement and Plan of Reorganization (Artemis Strategic Investment Corp), Agreement and Plan of Reorganization (Artemis Strategic Investment Corp), Agreement and Plan of Reorganization (Artemis Strategic Investment Corp)
Standstill. Effective from Until the earlier of (a) December 31, 2022 and (b) the date of this Agreement and continuing until the later on which stockholders of the certification Company are first permitted pursuant to the advance notice provisions under the bylaws of votes for the Company 2017 Annual Meeting of Stockholders or to submit proposals to be included in the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except Company’s proxy statement relating to the extent expressly permitted by the terms 2023 annual meeting of this Agreement, none stockholders of the Sellers shallCompany, CCOC, CLNY and Sellers shall cause their respective controlled Affiliates not toshall not, and shall ensure that their respective Representatives acting at their direction or on their behalf do not, directly or indirectly, in any manner, alone without the prior written invitation or in concert with othersconsent of the Board of Directors:
(a) solicitmake, or knowingly encourage or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” (as such terms are term is defined in Regulation 14A Rule 14a-1 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each caseincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act, with respect to securities of the Company vote or Fifth Street Senior Floating Rate Corp. (“FSFR”) or refrain from voting any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Securities;
(b) make any director nomination or shareholder proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFRthe Board of Directors;
(c) act alone or with others to seek to control, including any action that is intended to, change or is reasonably likely to result in, the replacement of the investment advisor of influence the Company or FSFRany of its subsidiaries, or its or their respective management, operations or boards of directors, excluding any subsidiary in which an Other CLNY Fund has a modification then current ownership interest or any assets of any such subsidiary;
(d) form or join a group (within the meaning of Section 13(d)(3) of the Exchange Act) with any Person(s) in connection with the taking of actions set forth in this Section 3.4, or act together with any Person or group in taking any such actions;
(e) act, whether alone or with others, to propose or seek to propose, or solicit or negotiate with any Person with respect to, any merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation or similar transaction of or involving, or any sale or acquisition of all or a substantial part of the terms or conditions of either consolidated assets of, the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in deposit any way participate Securities in a partnership, limited partnership, syndicate voting trust or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of similar arrangement or enter into or subject any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect Securities to any securities of the Companies voting agreement, pooling arrangement or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreementsimilar arrangement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or any purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, including any put or call option or swap “swap” transaction) with respect to any security (other than a broad-based market basket or having index) that relates to or derives any measurement relating to any securities significant part of its value from a decline in the market price or value of the CompaniesCapital Stock;
(nh) enter into intentionally act as a financing source for any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement other Person in connection with any of the foregoing;
(i) take any action in pursuit of any of the types of matters set forth in this Section 3.4 that is reasonably likely to cause or require the Company or any of its subsidiaries to make a public announcement regarding any of the types of matters set forth in this Section 3.4 or in response thereto;
(j) disclose any intention, plan or make any investment in arrangement, or enter into any arrangement negotiations, arrangements or understandings with any other person that engagesthird party, or offers or proposes to engage, in any of which are inconsistent with the foregoing; provided, however, that any disclosure by CCOC or otherwise take its Affiliates of whether or cause any action not it intends to tender CCOC Shares or make any statement inconsistent how it intends to exercise its voting rights with any respect thereto to the extent required for such Persons to comply with applicable securities Laws in response to a publicly disclosed third-party proposal with respect to the Company or its Capital Stock shall not be deemed a breach of the foregoingthis clause (j); or
(ok) take make any action challenging the validity or enforceability of this Agreement, or make or in any way advance any public request or proposal that the Company, FSFR, to the Company Board or the FSFR Board amendany of its subsidiaries or their respective agents, modify representatives or advisors, directly or indirectly, to amend or waive any provision of Section 3.2, Section 3.3 or this AgreementSection 3.4. Notwithstanding anything to the contrary contained herein, (i) CCOC or CLNY or their respective representatives may make a confidential proposal to the Board of Directors, so long as such proposal could not reasonably be expected to require CLNY, the Company or their respective Affiliates to make a public disclosure thereof and (ii) CCOC and its Affiliates may sell, transfer, convey or otherwise dispose of the CCOC Shares. In addition, notwithstanding the foregoing, the restrictions set forth in this Section 3.4 will terminate and be of no further force and effect (i) upon (x) the sale of all or substantially all of the Company’s assets or (y) the issuance of securities or obligations representing or convertible into, directly or indirectly, more than fifty percent (50%) of the Class A Common Stock (or any successor security) (or of any subsidiary or Affiliate representing all or substantially all of the Company’s consolidated assets), in each case to an unaffiliated third-party, or (ii) if the Company files, or a voluntary or involuntary proceeding is initiated by or against the Company, for protection pursuant to applicable bankruptcy or similar laws for the protection of debtors (and, in the case of any such involuntary proceeding, such proceeding shall not have been vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof).
Appears in 5 contracts
Sources: Stockholders Agreement (Colony Capital, Inc.), Stockholders Agreement (Colony Credit Real Estate, Inc.), Termination Agreement (Colony Capital, Inc.)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Unless a Release Event (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except with respect to the extent expressly permitted by Company shall have occurred, you (or anyone authorized to act on your behalf) shall not, for a period of six months after the terms date of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone do the following unless requested by the Company or in concert connection with othersthe Transaction:
(a) solicitmake any statement or proposal to the board of directors of the Company or any of its stockholders with respect to, or knowingly encourage make any public announcement, proposal or in offer (including any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” as such terms are defined or used in Regulation 14A under of the Securities Exchange Act of 1934, as amended amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business combination, consolidation, merger, tender offer, exchange offer or similar transaction involving the “Exchange Act”Company or any of its subsidiaries, (ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of proxies its subsidiaries, (iii) any acquisition of more than 4.99% of any voting securities or consents (including, without limitation, any solicitation of consents that seeks rights or options to call a special meeting of stockholders or by encouraging or participating acquire interests in any “withhold” or similar campaign), in each case, with respect to such voting securities of the Company or Fifth Street Senior Floating Rate Corp. any of its subsidiaries, (“FSFR”iv) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting to seek representation on the board of the stockholders directors of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their its subsidiaries or joint ventures or any of their respective securities otherwise (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, whether alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek to control or influence the removal management, board of any member of the Company Board directors or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or the investment advisor any of FSFRits subsidiaries, (v) solicit consents from the Company any request or FSFR stockholders proposal to waive, terminate or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce amend the provisions of this Agreement and or (iivi) counterclaims any proposal or other statement that is inconsistent with respect the terms of this Agreement, including this Section 7(a); provided, that this clause (a) shall not apply to any proceeding initiated by, or on behalf of, request to waive your obligations under this Section 7 so long as such request is not made in a party manner which would reasonably be expected to this Agreement or FSFR against Sellersrequire the Company to make a public announcement regarding such request;
(mb) encourage or assist any other Person (including forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934) with any such other Person) to do, or enter into any discussions or engage agreements with any other Person with respect to, any of the actions set forth in clause (a) above;
(c) take any short sale action which would reasonably be expected to require the Company to make a public announcement regarding any of the actions set forth in clause (a) above; or
(d) offer to acquire, acquire, own or sell (or propose, agree or seek permission, to acquire, own or sell), of record or beneficially, by purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitationotherwise, any put voting securities or call option or swap transaction) with respect to or having any measurement relating to any securities indebtedness of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withCompany, or adviserights or options to acquire interests in any voting securities or indebtedness of the Company (except that you may purchase for investment in market transactions beneficial ownership of up to 5% in aggregate of the outstanding voting securities or indebtedness of the Company or any of its subsidiaries, finance, assist, seek or rights or options to knowingly persuade acquire interests in any voting securities or encourage, indebtedness of the Company or any Third Party of its subsidiaries); in each case unless and until you have received the prior written approval of our board of directors to take any action or make any statement in connection with do any of the foregoing. The foregoing shall not apply to your Representatives effecting or recommending transactions in securities in the ordinary course of their business as an investment advisor, broker, dealer in securities, market maker, specialist or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementblock positioner.
Appears in 4 contracts
Sources: Non Disclosure Agreement, Non Disclosure Agreement, Confidentiality Agreement
Standstill. Effective from During the date of this Agreement and continuing until the later Standstill Period, any Holder that together with its Affiliates owns 25% or more of the certification issued and outstanding shares of votes for Common Stock shall not:
(a) directly or indirectly, purchase or otherwise acquire, or propose or offer to purchase or otherwise acquire, any Equity Securities whether by tender offer, market purchase, privately negotiated purchase, Business Combination or otherwise, if, immediately after such purchase or acquisition, the Holder Interest of such Holder would equal or exceed the Initial Percentage;
(b) directly or indirectly propose to the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR any Person a Business Combination;
(as defined belowc) 2017 Annual Meeting of Stockholders (the “Standstill Period”)make, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toor in any way participate, directly or indirectly, in any manner, alone or in concert with others:
"solicitation" of "proxies" to vote (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined used in Regulation 14A the rules promulgated by the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”Section 14(a) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents ) or otherwise;
(c) knowingly seek to advise, encourage, support, instruct encourage or influence any person with respect to any of the matters covered by this Section 3.1 or entity with respect to the voting or disposition of any securities shares of capital stock of the Companies at any annual Company, initiate, propose or special meeting of otherwise solicit stockholders of the Company for the approval of one or FSFR, except in accordance with Section 3.4, more stockholder proposals or seek induce or attempt to do so;induce any other Person to initiate any stockholder proposal; or
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any Equity Securities into a voting trust or similar arrangement, or subject any securities of the Companies Equity Securities to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek of such securities or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other "group, including, without limitation, a group as defined under " (within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any Equity Securities, other action that would interfere with than as expressly set forth in Section 7 hereof. Nothing in this Section 8 shall limit the ability of Sellers PGGM Directors to vote function in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions their capacities as members of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the . The provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to Section 8 may be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued waived by the Company or FSFRonly upon the approval of a majority of the Board, or any securities convertible into or exchangeable for securities issued excluding all PGGM Directors and shall not be applicable to actions approved by the Company or FSFR;
(k) sellmajority of the Board, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for excluding all PGGM Directors in circumstances in which the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations PGGM Directors are "interested directors" under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities 78.140 of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementNevada General Corporation Law.
Appears in 4 contracts
Sources: Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc), Registration Rights and Voting Agreement (Cornerstone Properties Inc), Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc)
Standstill. Effective from During the date of this Agreement Standstill Period, each Stockholder agrees that such Stockholder shall not, and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders shall cause its Restricted Affiliates and its and their Representatives acting at its or the certification of votes for the FSFR their direction or on its or their behalf (as defined below) 2017 Annual Meeting of Stockholders (such Stockholders, Restricted Affiliates and Representatives acting in such manner, being the “Standstill PeriodRestricted Persons”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates ) not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, whether directly or indirectly, (i) acquire, agree to acquire, propose or offer to acquire, or facilitate the acquisition or ownership of, shares of Parent Common Stock, or Securities of Parent that are convertible, exchangeable or exercisable into shares of Parent Common Stock, other than as a result of any stock split, stock dividend or subdivision of shares of Parent Common Stock, (ii) deposit any Covered Parent Shares into a voting trust or similar Contract or subject any Covered Parent Shares to any voting agreement, pooling arrangement or similar arrangement or other Contract (other than solely between or among the Stockholders), or grant any proxy with respect to securities any Covered Parent Shares (other than (A) pursuant to Section 3.4 or (B) otherwise to Parent or a Person specified by Parent in a proxy card provided to stockholders of Parent by or on behalf of Parent), (iii) enter into, or agree, propose or offer to enter into, or facilitate any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving Parent or any of its Subsidiaries, (iv) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Company SEC) to vote, or Fifth Street Senior Floating Rate Corp. advise or knowingly influence any Person with respect to the voting of, any Securities of Parent (“FSFR”other than to vote as recommended by the Parent Board), (v) call, or any securities convertible or exchangeable into or exercisable for any such securities (collectivelyseek to call, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special a meeting of the stockholders of the Company Parent or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence initiate any person with respect to any of the matters covered stockholder proposal for action by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFRParent, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fvi) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group Group (as defined under in Section 13(d) 13d-3 of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities Securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consentParent, (iivii) seekotherwise act, alone or in concert with others, representation on, to seek to control or nominate any candidate to, influence the Company Board management or the FSFR Boardpolicies of Parent (provided, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or that this clause (vii) make a request for any stockholders list shall in no way limit the activities of the Stockholders Director taken in good faith solely at meetings of the Parent Board or any committee thereof), (viii) publicly disclose any intention, plan, arrangement or other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRContract prohibited by, or any securities convertible into inconsistent with, the foregoing or exchangeable for securities issued by the Company or FSFR;
(kix) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, advise or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in encourage or enter into any arrangement discussions, negotiations, agreements, or arrangements or other Contracts with any other person that engages, or offers or proposes to engage, Persons in any of connection with the foregoing. The Stockholders further agree that, or otherwise take or cause any action or make any statement inconsistent with any of during the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFRStandstill Period, the Company Board Stockholders shall not, directly or the FSFR Board amendindirectly, modify and shall cause their respective Restricted Persons not to, directly or indirectly (a) request to Parent to amend or waive any provision of this AgreementSection 3.2 (including this sentence) or (b) take any action that would reasonably be expected to require Parent to make a public announcement regarding the possibility of a business combination, merger or other type of transaction or matter described in this Section 3.2. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, at all times during the Standstill Period, the Stockholders agree that their aggregate Beneficial Ownership, on a fully diluted basis, of Parent Common Stock or securities of Parent that are convertible, exchangeable or exercisable into Parent Common Stock, shall not exceed the Stockholder Ownership Limit.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Pinnacle Foods Inc.), Agreement and Plan of Merger (Hillshire Brands Co), Stockholders Agreement (Hillshire Brands Co)
Standstill. Effective from the date of this Agreement and continuing until the later (a) Each member of the certification North Tide Group agrees that, during the Covered Period, it shall not, and shall cause each of votes for the Company 2017 Annual Meeting of Stockholders its Affiliates or the certification of votes for the FSFR Associates (as such terms are defined below) 2017 Annual Meeting in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of Stockholders 1934, as amended (the “Standstill Period”"Exchange Act")) (collectively and individually, the "North Tide Affiliates") not to (except to the extent as expressly permitted by the terms of set forth in this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to), directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any "solicitation" of proxies (as such terms are defined used in Regulation 14A under the Securities Exchange Act proxy rules of 1934, as amended (the “SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act”) of proxies or consents (includingto vote, without limitationor seek to advise, encourage or influence any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, person with respect to the voting of any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “"securities of the Companies”);
Company") for the election of individuals to the Board or to approve stockholder proposals, or become a "participant" in any contested "solicitation" for the election of directors with respect to the Company (bas such terms are defined or used under the Exchange Act) make any proposal for consideration by stockholders (other than a "solicitation" or acting as a "participant" in support of all of the nominees of the Board at any annual stockholder meeting) or special meeting make or be the proponent of the stockholders of the Company or FSFR, whether any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents Act or otherwise);
(cii) knowingly adviseform, join, encourage, supportinfluence, instruct advise or influence in any person way participate in any "group" (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons who are not North Tide Affiliates with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise in accordance with Section 3.4, or seek to do so;
(d) any manner agree, attempt, seek or propose to deposit any securities of the Companies Company in any voting trust or similar arrangementarrangement (including lending any securities of the Company to any person for the purpose of allowing such person to vote such securities in connection with any stockholder vote of the Company), or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except other than in accordance with Section 3.4this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single "person" under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”Act), with respect to through swap or hedging transactions or otherwise, any securities of the Companies Company or take any other action rights decoupled from the underlying securities of the Company that would interfere result in the North Tide Group (together with the ability North Tide Affiliates) owning, controlling or otherwise having any beneficial or other ownership interest in more than 15% in the aggregate of Sellers the shares of Common Stock outstanding at such time; provided that nothing herein will require Common Stock to vote in accordance with be sold to the extent the North Tide Group and the North Tide Affiliates, collectively, exceed the ownership limit under this Agreementparagraph as the result of a share repurchase or similar Company actions that reduces the number of outstanding shares of Common Stock, as long as the beneficial or other ownership interest of the North Tide Group does not increase thereafter (except solely as a result of corporate actions taken by the Company);
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures or any of their respective securities (each, an “"Extraordinary Transaction”"), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the North Tide Group or disclosure a North Tide Affiliates of any securities of the Company into any tender or exchange offer or vote with respect to any Extraordinary Transaction approved by the 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 any hedging, put or call option or "swap" transaction) with respect to any securities of the Company (other than a broad-based market basket or index);
(vi) (A) seek representation on or nominate any candidate to, the Board, except as set forth herein, (B) seek or encourage the removal of any member of the Board, (C) conduct a referendum of stockholders, or (D) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board, management or policies of the Company, including any plans or proposals to change the number or term of directors or the removal of any directors, or to fill any vacancies on the Board, except as set forth herein; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company's management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company's restated certificate of incorporation, as amended, or the Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, arrangement, plan or proposal with respect to the Board, the Company, its management, policies or affairs, any Extraordinary Transaction of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(ix) commence, including encourage or support any intent, purpose, plan or proposal that is conditioned onderivative action in the name of the Company, or would any class action against the Company or any of its officers or directors;
(x) take any action which could cause or require waiverthe Company or any Affiliate of the Company to make a public announcement regarding any of the foregoing, amendmentpublicly seek or request permission to do any of the foregoing;
(xi) request, nullification directly or invalidation ofindirectly, that the Company or the Board or any of their respective representatives amend or waive any provision of this Agreement Section 2(a) or for the Board to specifically invite the North Tide Group to take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionactions prohibited by this Section 2(a);
(ixii) (i) call enter into any discussions, negotiations, agreements or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert understandings with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withforegoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or cause any action or make any statement 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 respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or;
(oxiii) take any action challenging the validity or enforceability of any of the provisions of this AgreementSection 2(a) or publicly disclose, or make cause or in facilitate the public disclosure (including the filing of any way advance document with the SEC or any request other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purposes, plan or proposal that to take any action challenging the validity or enforceability of any provisions of this Section 2(a). The foregoing provisions of this Section 2(a) shall not be deemed to prohibit (i) the North Tide Group and their representatives from communicating privately with the Company's directors, FSFRofficers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; (ii) the North Tide Group from taking actions, beginning not before the earlier to occur of (A) February 13, 2015 or (B) the date that is 45 days prior to the deadline for the submission of stockholder director nominations for the 2015 Annual Meeting, in furtherance of privately identifying director candidates in connection with the 2015 Annual Meeting so long as such actions do not create a public disclosure obligation for the North Tide Group or any of the North Tide Affiliates and are undertaken on a confidential basis, without contacting any stockholder of the Company and in accordance in all material respects with the North Tide Group's normal practices in similar circumstances; or (iii) the 2014 New Nominees from taking any actions that may be taken solely in their capacity as members of the Board or in accordance with their respective fiduciary duties to all stockholders of the FSFR Board amend, modify or waive any provision Company so long as such actions are consistent with the North Tide Group's and such 2014 New Nominee's obligations and representations under the other sections of this Agreement. Further, the foregoing provisions of this Section 2(a) shall not limit the ability of the North Tide Group, except as otherwise provided in Section 1(d), to vote its shares of Common Stock or announce its opposition to any Board-approved proposals on any matter submitted to a vote of the stockholders, including with respect to any Extraordinary Transaction, to the extent such proposals are not supported by ▇▇. ▇▇▇▇▇▇▇▇ in his capacity as a member of the Board.
(b) For purposes of this Agreement:
(i) the terms "person" or "persons" shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature.
Appears in 3 contracts
Sources: Nomination and Standstill Agreement (North Tide Capital, LLC), Nomination and Standstill Agreement (Healthways, Inc), Nomination and Standstill Agreement (Healthways, Inc)
Standstill. Effective Until the termination of this Agreement in accordance with its terms, the Shareholder shall and shall cause its Affiliates not to (a) subject to the Company’s compliance with the last sentence of this Section 1.1, solicit proxies, announce an intention to or continue any announced intention to solicit proxies, from shareholders of the Company in respect of the election of the Shareholder’s nominees as members of the board of directors of the Company (or support the efforts of any other Person in doing so (other than the Company)) or (b) solicit, negotiate or otherwise knowing facilitate or knowingly encourage directly or indirectly, any Acquisition Proposal or (c) directly or indirectly acquire any securities, business or assets of the Company or any business, assets or securities of its Subsidiaries or (d) sell, transfer, assign, pledge, hypothecate, tender, encumber or otherwise dispose of or limit its right to vote the Securities, or agree to do any of the foregoing (or Beneficial Ownership thereof) (each a, “Transfer”) (i) pursuant to an Acquisition Proposal or (ii) through any transaction or series of related transactions to (A) other than through trades over NASDAQ or any securities exchange or market on which the Securities are traded, any Person more than 5% of the outstanding Common Stock of the Company (“Person”, for purposes of this clause (d)(ii)(A), includes any Person and any other Person known by the Shareholder to be an Affiliate of such first Person) or (B) any Subsidiary of Shareholder unless, in the case of this clause (c)(ii), such Person to which any of such Securities or any interest in any of such Securities is Transferred shall have executed and delivered to Parent a counterpart to this Agreement pursuant to which such Person shall be bound by all of the terms and provisions of this Agreement. The Company, by its execution and delivery to the Shareholder of a copy of this Agreement, (1) agrees that, prior to the consummation of the Merger or the termination of the Merger Agreement, it will not call an annual or special meeting for the election of directors and, in the event that the Merger Agreement is terminated, it will call an annual or special meeting for the election of directors to be held on a date not earlier than 60 days nor later than 90 days after the date of termination of the Merger Agreement, (2) represents and warrants to the Shareholder that, for the purposes of this sentence, this Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by the Company, this agreement of the Company contained in this sentence constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity) and (3) understands and acknowledges that the Shareholder is entering into this Agreement in reliance upon the Company’s execution and delivery of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)covenants, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, representations and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities warranties of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by set forth in this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementlast sentence.
Appears in 3 contracts
Sources: Merger Agreement (Ingredion Inc), Merger Agreement (Penford Corp), Voting and Support Agreement (Penford Corp)
Standstill. Effective from Unless terminated earlier pursuant to Section 2.2, during the date of this Agreement period (such period, the “Standstill Term”) commencing on the Closing Date and continuing until the later of (i) the certification first (1st) anniversary of votes for the Closing Date and (ii) the date that is thirty (30) calendar days following the date on which no Investor Designee is serving on the Board, the Investor, SKT and their Subsidiaries shall not do any of the following, except as approved, invited or waived in writing by the Company 2017 Annual Meeting or a majority of Stockholders or the certification of votes for Board (excluding the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”Investor Designee, if any), except to the extent expressly permitted or as contemplated by the terms of this Agreement, none :
(a) other than purchases of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toParticipation Right Shares, directly or indirectly, acquire beneficial ownership of Company Ordinary Shares and/or Company Ordinary Share Equivalents and/or any instrument that gives the Investor the economic equivalent of ownership of an amount of Company Ordinary Shares, except that nothing in any manner, alone this Section 2.1(a) shall prevent or prohibit the Investor from investing in concert a fund with others:respect to which the Investor does not have or share decision-making authority over investment or divestment decisions;
(ab) solicitmake a tender offer, exchange offer or other offer to the public to acquire Company Ordinary Shares and/or Company Ordinary Share Equivalents;
(c) (i) seek to have called any meeting of the shareholders of the Company or propose any matter to be voted upon by the shareholders of the Company, or knowingly (ii) propose or nominate for election or appointment to the Board a person other than the Investor Designee whose nomination has not been approved by a majority of the Board (excluding the Investor Designee, if any);
(d) encourage or support a tender offer, exchange offer or other offer to the public by any Third Party for Company Ordinary Shares and/or Company Ordinary Share Equivalents (if such offer or proposal would, if consummated, result in any way engage in any solicitation ofa Change of Control of the Company, any such offer or proposal is referred to as an “Acquisition Proposal”);
(e) solicit proxies or consents or become a “participant” participant in a “solicitation,” directly or indirectly, (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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities voting of Company Ordinary Shares, other than a solicitation made by the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities the majority of the Companies”Board (excluding the Investor Designee, if any);
(bf) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies Company Ordinary Shares and/or Company Ordinary Share Equivalents in any a voting trust or similar arrangement, or subject any such securities of the Companies to any arrangement or agreement with respect to the voting thereofof such securities, except in accordance with Section 3.4including the granting of any proxy (other than a proxy solicited by the Company or the majority of the Board (excluding the Investor Designee, if any));
(eg) knowingly seek without the prior written consent of the Company or encourage the majority of the Board (excluding the Investor Designee, if any) (i) publicly propose (x) any person to submit nominations in furtherance merger, consolidation, business combination, tender or exchange offer, purchase of a “contested solicitation” the Company’s assets or take businesses, or (y) any recapitalization, restructuring, liquidation or other action for the election or removal of directors extraordinary transaction with respect to the Company (a transaction described in clauses (x) and (y) that would result in a Change of Control, is referred to as a “Business Combination”) or FSFR, including (ii) take any action with respect to a potential Business Combination prior to the approval of such potential Business Combination by a majority of the Board (excluding the Investor Designee, if any) that is intended towould reasonably be expected to require the Company to make a public announcement regarding such potential Business Combination; or
(h) act in concert with any Third Party to take any action, or is reasonably likely to result inmake any public announcement regarding any action, the replacement of the investment advisor of the Company set forth in clauses (a) through (g) above, or, directly or FSFRindirectly, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group ” (as such term is defined under in Section 13(d13d(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action in clauses (a) through (g) above; provided, however, that nothing contained in this Section 2.1 shall prevent, restrict, encumber, or make limit in any statement in connection with manner: (A) the Investor or any of its Affiliates from making confidential, nonpublic proposals to the foregoingBoard for a transaction involving a Business Combination or Acquisition Proposal, the discussions of which would not reasonably be expected to require a public disclosure; (B) the Investor Designee from performing its duties as a member of the Board; (C) the Investor or make any investment in of its Affiliates from exercising their respective rights, performing their respective obligations or enter into any arrangement with any other person that engages, otherwise consummating the transactions contemplated by this Agreement or offers or proposes to engagethe Purchase Agreement, in any of each case, in accordance with the foregoingterms hereof and thereof; or (D) nonpublic discussions or communications among the Investor, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementits Affiliates and their counsel and other Representatives.
Appears in 3 contracts
Sources: Investor Agreement (Penguin Solutions, Inc.), Investor Agreement (Penguin Solutions, Inc.), Securities Purchase Agreement (SMART Global Holdings, Inc.)
Standstill. Effective from You hereby represent to the Company that, as of the date hereof, except as set forth in reports filed prior to the date hereof with the U.S. Securities and Exchange Commission, neither you nor, to your knowledge, any of this Agreement and continuing until the later your present Representatives as of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR date hereof, has beneficial ownership (as defined belowin Rule 13d-3 under the Exchange Act) 2017 Annual Meeting of Stockholders any securities of the Company or any of its subsidiaries. In consideration for your being permitted to share Proprietary Information with certain persons, you agree that, unless requested in writing in advance by the Special Committee’s Representatives (for so long as the “Standstill Period”Special Committee is in existence and the Company’s Representatives acting at the direction of the independent and disinterested members of the Board of Directors after the Special Committee has been disbanded), except to neither you nor your Representatives will, at any time during the extent expressly permitted by twelve month period commencing on the terms of this Agreementdate hereof (or, none of the Sellers shallat any time during such period, and Sellers shall cause their respective controlled Affiliates not assist, advise, act in concert or participate with or knowingly encourage others to), directly or indirectlythrough others (including, without limitation, in any manner, alone or in concert with others:
your capacity as a trustee): (a) solicitacquire (or agree, offer, seek or knowingly encourage propose to acquire, in each case, publicly or privately), by purchase, tender offer, exchange offer, agreement or business combination or in any way engage other manner, any ownership, including, but not limited to, beneficial ownership, as defined in Rule 13d-3 under the Exchange Act, of any material assets or businesses or any securities of the Company or any direct or indirect subsidiary thereof, or any rights or options to acquire such ownership (including, without limitation, from any third party) (provided that this clause (a) shall not prohibit (i) any of you from gifting or otherwise transferring to another signatory hereto, shares of common stock held by you (provided that you give the Company written notice of the details of any such gift or transfer no later than three days after it is made) or from acquiring shares of stock pursuant to distributions to shareholders of the Company by the Company, (ii) E▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and P▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ from being awarded or receiving any grants of equity awards or equity securities of the Company upon vesting or exercise of such awards pursuant to their roles as members of the Company’s management and/or the Company’s board of directors); (iii) any of you or any of your parents, step-parents, spouses, aunts, uncles, children, nephews, nieces, cousins, or other blood relatives, and any trusts for which you now or in the future serve in any solicitation administrative or trust capacity (collectively, the “Family Owners,” and each individually, a “Family Owner”) or for which any Family Owner is a trustee or beneficiary, from making or receiving bona fide gifts or transfers of any equity securities of the Company from any other Family Owner, (iv) any transfer or acquisition of rights or beneficial ownership in respect of any equity securities of the Company made in respect of bona fide estate planning, resulting from or to give effect to, any estate plans; or (v) acting in any fiduciary role with respect to any Family Owner(s), or trust for the benefit of such Family Owner(s), including, but not limited to, executor, trustee, attorney-in-fact, agent, and/or custodian, and taking all any and all actions required thereby; (b) publicly or privately offer to enter into, or publicly or privately propose (except in your capacity as an officer of the Company where the Company is acting as an acquiror, in each case only if expressly invited to do so by the Special Committee), any merger, business combination, recapitalization, restructuring or other extraordinary transaction with the Company or any direct or indirect subsidiary thereof; (c) unless (i) the Board of Directors or the Special Committee adversely alters the status, duties and terms of employment (other than changes to compensation in the ordinary course of business by the Compensation Committee of the Board) in a material respect or expressly threatens the employment status of E▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or P▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or requests either of their resignations as an officer, employee or director of the Company, or (ii) the Board of Directors or any committee thereof proposes to seek the resignation of E▇▇▇ ▇▇▇▇▇▇▇▇▇ or P▇▇▇▇ ▇▇▇▇▇▇▇▇▇ from the Board of Directors or communicates an intent not to nominate them for re-election as members of the Board of Directors, (A) initiate any stockholder proposal, or except in your capacity as a director or officer of, in each case only if expressly directed to do so by the Company’s board of directors, the Company with respect to any annual or special meeting called by the Board of Directors, the convening of a stockholders’ meeting of or involving the Company or any direct or indirect subsidiary thereof; or (B) solicit proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A Rule 14a-1 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), whether or not such solicitation is exempt pursuant to Rule 14a-2 under the Exchange Act, with respect to any matter, except in your capacity as an officer or director of the Company, in each case only if expressly directed to do so by the Company’s board of directors, otherwise seek to influence, advise or direct the vote of, holders of any shares of capital stock of the Company or any securities convertible into or exchangeable or exercisable for (in each case, whether currently or upon the occurrence of any contingency) such capital stock, or make any communication exempted from the definition of solicitation by Rule 14a-1(I)(2)(iv) under the Exchange Act; (d) other than discussions, negotiations, agreements, arrangements or understandings among yourselves and your Representatives with respect to the Possible Transaction in compliance with this Agreement, enter into any discussions, negotiations, agreements, arrangements or understandings with any other person with respect to any matter described in the foregoing clauses (a) through (c) or form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) to vote, acquire or dispose of any securities of the Company or Fifth Street Senior Floating Rate Corp. any of its subsidiaries; or (“FSFR”e) or any securities convertible or exchangeable into or exercisable for any such securities other than as expressly permitted by this Agreement (collectively, “securities of the Companies”);
(bx) make any proposal for consideration by stockholders at public disclosure, or (y) take any annual action that could reasonably be expected to require you or special meeting of the stockholders of the Company or FSFRto make a public disclosure, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by set forth in this Section 3.1 or with respect Agreement. Notwithstanding anything in this Paragraph 7 to the voting or disposition of any securities of contrary, you may (1) unless otherwise requested by the Companies at any annual or special meeting of stockholders of Special Committee, enter into discussions with the Company or FSFRSpecial Committee and its Representatives to explore a Possible Transaction, except in accordance with Section 3.4, or seek to do so;
and (d2) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
make requests (e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect but only privately to the Company and not publicly) for amendments, waivers, consents under or FSFR, including any action that is intended to, agreements not to enforce clauses (a) through (c) of this Paragraph 7 and may make proposals or is reasonably likely offers (but only privately to result in, the replacement of the investment advisor of the Company or FSFRnot publicly) regarding the transactions contemplated by clauses (a) through (c) of this Paragraph 7, or in each case under this clause (2), at any time after a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
Fundamental Change Event (f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of below). A “Fundamental Change Event” means the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of Company has after the date of this AgreementAgreement entered into a definitive written agreement providing for (i) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any acquisition of 30% or more of the voting securities of the Companies Company by any person or take group, (ii) any other action that would interfere with acquisition of a majority of the ability consolidated assets of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor and its subsidiaries by any person or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFRgroup, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiii) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, merger or other business combination, combination or any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving (provided that, in the Company, FSFR or either case of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities transaction covered by the foregoing clause (each, an “Extraordinary Transaction”iii), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 ofimmediately following such transaction, any provision of this Agreement person, other than you or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
your controlled affiliates (i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Boarddirect or indirect shareholders of such person), (iii) seek the removal of any member will beneficially own a majority of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor outstanding voting power of the Company or the investment advisor surviving parent entity in such transaction). For purposes of FSFRthis Paragraph 7, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause following will be deemed to be purchased or otherwise acquire or agree to acquire an acquisition of beneficial ownership of any securities issued by the Company securities: (1) establishing or FSFRincreasing a call equivalent position, or liquidating or decreasing a put equivalent position, with respect to such securities within the meaning of Section 16 of the Exchange Act; or (2) entering into any swap or other arrangement that results in the acquisition of any of the economic consequences of ownership of such securities, whether such transaction is to be settled by delivery of such securities, in cash or otherwise. For purposes of this Paragraph 7, any acquisition of beneficial ownership of securities convertible into shall not include an acquisition pursuant to any stock split, reverse stock split, recapitalization, reclassification of shares, or exchangeable for securities issued by the Company or FSFR;
(k) sellsimilar transaction, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued in each case undertaken by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 3 contracts
Sources: Nondisclosure Confidentiality Agreement (Nordstrom Erik B), Nondisclosure Confidentiality Agreement (Nordstrom Erik B), Nondisclosure Confidentiality Agreement (Nordstrom Erik B)
Standstill. Effective Each member of the Dialectic Group agrees that, from the date of this Agreement and continuing until the later one-year anniversary of the certification date of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms neither it nor any of this Agreement, none of the Sellers shallits Affiliates or Associates under its control or direction will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (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”)) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders, action by written consent of stockholders and any solicitation or by encouraging or participating in any “withhold” or similar campaignnomination pursuant to Rule 14a-11 under the Exchange Act), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Company;
(bii) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant seek to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct support or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies Company at any annual or special meeting of stockholders of the Company or FSFRstockholders, except in accordance with Section 3.4, or seek to do so4(a)(vii);
(diii) agreeform, attempt, seek join or propose 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 herein as part of the Dialectic Group);
(iv) deposit any securities of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities of the Companies Common Stock to any arrangement or agreement with respect to the voting thereofof any Common Stock, except in accordance with Section 3.4other than any such voting trust, arrangement or agreement solely among the Dialectic Group;
(ev) knowingly control, influence or seek to control or influence the Board, other than through non public communications with the officers and directors of the Company;
(vi) seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, solicitation or is reasonably likely nomination pursuant to result in, Rule 14a-11 under the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreementExchange Act;
(f1) form, join in make any proposal for consideration by stockholders at any annual or in special meeting of stockholders or (2) make any way participate in a partnership, limited partnership, syndicate offer or other group, including, proposal (with or without limitation, a group as defined under Section 13(dconditions) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of a merger, acquisition, disposition or other business combination involving the Companies or take any other action that would interfere with Dialectic Group and the ability of Sellers to vote in accordance with this AgreementCompany;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iiviii) seek, alone or in concert with others, representation on, or nominate any candidate to, on the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oix) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board to amend, modify waive or waive terminate any provision of this Agreement, other than through non public communications with the officers and directors of the Company that do not trigger any disclosure obligation on the part of the Company or any member of the Dialectic Group; provided, however, that nothing herein will limit the ability of (1) any member of the Dialectic Group, or its respective Affiliates and Associates, except as otherwise provided in Section 3, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company in such manner as it may determine in its sole discretion; (2) the Dialectic Group to announce its opposition to any Board-approved and publicly-announced proposals, including, but not limited to, a merger, acquisition, disposition of all or substantially all of the assets of the Company or other business combination or divestiture involving the Company; (3) the Dialectic Group to file a Schedule 13D/A with the Securities and Exchange Commission disclosing the execution of this Agreement and terminating their status as a group; or (4) any member of the Dialectic Group, or its respective Affiliates and Associates from taking any action as in the opinion of counsel is reasonably required to comply with applicable law (including any Federal or State securities laws, rules or regulations or the rules and regulations of any stock exchange or stock market).
Appears in 3 contracts
Sources: Nomination Agreement (Immersion Corp), Shareholder Agreement (Dialectic Capital Management, LLC), Shareholder Agreement (Immersion Corp)
Standstill. Effective from (a) Until the earliest to occur of (i) 12:01 a.m. on November 27, 2019, (ii) the Company’s failure to take such action to appoint each of the Designees (or a Replacement) to serve as a director of the Company effective at the close of business on November 29, 2018, (iii) the delivery of a Slate Notice that does not state that each of the Designees will be included on the Company’s slate of nominees for the 2019 Annual Meeting and that all members of the Board have confirmed to the Company their agreement to vote in favor of the Company’s proposed slate of directors at the 2019 Annual Meeting, (iv) the Company’s failure to deliver the Slate Notice on or prior to the date of this Agreement that is 30 days prior to the advance notice deadline for making director nominations under the Company’s bylaws at the 2019 Annual Meeting, and continuing until (v) the later Company’s failure to include each of the certification Designees on the Company’s slate of votes nominees for the Company 2017 2019 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms no member of this Agreement, none of the Sellers Third Point shall, directly or indirectly, and Sellers each member of Third Point shall cause their respective controlled Affiliates each Third Point Affiliate it controls not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitsolicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) with respect to, or knowingly encourage or in any way engage in any solicitation from the holders of, any proxies or consents the Voting Securities (as defined below), or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in Regulation Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies in or consents knowingly assist any person or entity not a party to this agreement (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating “Third Party”) in any “withholdsolicitation” of any proxy, consent or similar campaign), in each case, with respect other authority (as such terms are defined under the Exchange Act) to securities vote any shares of the Voting Securities (other than such encouragement, advice or influence that is consistent with Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any management’s recommendation in connection with such securities (collectively, “securities of the Companies”matter);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(cii) knowingly advise, encourage, support, instruct advise or influence any other person or assist any Third Party in so encouraging, assisting or influencing any person with respect to any of the matters covered by this Section 3.1 giving or with respect to the voting or disposition withholding of any securities proxy, consent or other authority to vote or in conducting any type of the Companies at any annual referendum (other than such encouragement, advice or special meeting of stockholders of the influence that is consistent with Company or FSFR, except management’s recommendation in accordance connection with Section 3.4, or seek to do sosuch matter);
(diii) agree, attempt, seek form or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, including a group “group” as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”)Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any securities group composed solely of Third Point and the Companies Third Point Affiliates) or take otherwise support or participate in any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal effort by a Third Party with respect to the FSC Board of Directors matters set forth in clauses (the “Company Board”i), the Company investment advisor (vii) or the terms and conditions (ix) herein;
(iv) present at any annual meeting or any special meeting of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor shareholders any proposal for consideration for action by shareholders or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or, except as otherwise expressly contemplated by this Agreement, propose any nominee for election to the Board or seek representation on the FSFR Board;
(v) other than in market transactions where the identity of the ultimate purchaser is not known and in underwritten widely dispersed public offerings, (iv) seeksell, alone offer or in concert with othersagree to sell directly or indirectly, through swap or support any Third Party in seekinghedging transactions or otherwise, to replace the investment advisor securities of the Company or the investment advisor of FSFR, (v) solicit consents any rights decoupled from the Company underlying securities held by Third Point to any Third Party unless such sale, offer, or FSFR stockholders agreement to sell would not knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise act having any beneficial or seek to act other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time or would increase the beneficial or other ownership interest of any Third Party who, together with its Affiliates, has a beneficial or other ownership interest in the aggregate of 5% or more of the shares of Common Stock outstanding at such time, except in each case in a transaction approved by written consent, the Board;
(vi) conduct a referendum grant any proxy, consent or other authority to vote any Voting Securities of the Company with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or FSFR stockholders special meeting of shareholders) or deposit any Voting Securities of the Company in a voting trust or subject them to a voting agreement or other arrangement of similar effect with respect to any annual meeting except as provided in Section 3(b) below, special meeting of shareholders or action by written consent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vii) make a any request for any stockholders list stocklist materials or any other books and records in Sellers’ capacity as a of the Company under Section 14A:5-28 of the New Jersey Revised Statutes or FSFR stockholderotherwise;
(jviii) purchase make, or cause to be purchased made, any statement or announcement that relates to and constitutes an ad hominem attack on, or relates to and otherwise acquire criticizes or agree disparages, the Company or its business, operations or financial performance, its officers or its directors or any person who has served as an officer or director of the Company in the past, or who serves on or following the date of this Agreement as an officer, director or agent of the Company, including without limitation, (A) in any document or report filed with or furnished to acquire beneficial ownership the SEC or any other governmental agency, (B) in any press release or other publicly available format, or (C) to any shareholder, analyst, journalist or member of the media (including without limitation, in a television, radio, internet, newspaper or magazine interview) (and the Company agrees that this Section 3(a)(viii) shall apply mutatis mutandis to the Company, its subsidiaries and their respective directors and officers with respect to Third Point and its Affiliates), but nothing herein shall limit or preclude Third Point from exercising any securities issued rights under this Agreement or conveying its opinion and views to any members of the Board privately and in a manner that does not require public disclosure by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFRThird Point;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(lix) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their its current or former directors or officers in their capacities as such (including derivative actions), other than (iA) litigation by Third Point to enforce the provisions of this Agreement and Agreement, (iiB) counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against Third Point or a party Designee, and (C) the exercise of statutory appraisal rights; provided that the foregoing shall not prevent any member of Third Point from responding to or complying with a validly issued legal process (and the Company agrees that this Agreement or FSFR against SellersSection 3(a)(ix) shall apply mutatis mutandis to the Company, its subsidiaries and their respective directors and officers with respect to Third Point and its Affiliates);
(mx) enter into without the prior written approval of the Board, separately or engage in conjunction with any other person or entity in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or effect any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or a material amount of the assets or businesses of the Company (an “Extraordinary Transaction”) or actively encourage, initiate or support any other Third Party in any short sale or purchasesuch activity, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any but nothing shall preclude Third Point from tendering its securities of the CompaniesCompany into any tender or exchange offer or otherwise voting any of its Voting Securities in any manner it determines in connection with an Extraordinary Transaction;
(nxi) purchase or cause to be purchased or otherwise acquire or agree to acquire Beneficial Ownership of any Voting Securities if in any such case, immediately after the taking of such action, Third Point would, in the aggregate, collectively beneficially own, or have an economic interest in, an amount that would exceed 9% of the then outstanding shares of Common Stock;
(xii) enter into any negotiations, arrangementsagreements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, understandings with any Third Party with respect to take any action or make any statement the matters set forth 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingthis Section 3; or
(oxiii) take request, directly or indirectly, any action challenging amendment or waiver of the validity foregoing in a manner that would be reasonably likely to require public disclosure by Third Point (or enforceability of this Agreement, any Third Point Affiliates) or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 3 contracts
Sources: Support Agreement (Strawbridge George Jr), Support Agreement (Third Point LLC), Support Agreement (Campbell Soup Co)
Standstill. Effective from (a) During the date Standstill Period, Stockholder shall not, and shall not permit its controlled Affiliates to, and, except as set forth in Section 3.01(b), shall cause each of the Investors (including for purposes of this Agreement Section 3.01 their Affiliates) not to (and continuing until Stockholder represents and warrants that the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Investors (other than as defined belowset forth in Section 3.01(f) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except with respect to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallTencent, and Sellers shall cause their respective controlled Affiliates other than the Investment Company Investors as set forth in Section 3.01(b)) have agreed not to), directly or indirectly: (i) acquire, in any manner, alone offer or in concert with others:
(a) solicitpropose to acquire, or knowingly encourage agree or in any way engage in any solicitation seek to acquire, or solicit the acquisition of, any proxies by purchase or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 limitationotherwise, any solicitation Equity Interests (or beneficial ownership thereof) or commence any tender or exchange offer for any Equity Interests (or beneficial ownership thereof); provided, however, that this clause (i) shall not apply to Equity Interests or rights to acquire Equity Interests issued by the Company to Stockholder, any of consents its controlled Affiliates or any Investor as a dividend, distribution or otherwise in respect of any Shares; and provided, further, that seeks (A) any Investor who is also an officer or director of the Company shall not be in breach of this clause (i) due to call a special meeting the acquisition of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company pursuant to (x) the grant or Fifth Street Senior Floating Rate Corp. vesting of any equity compensation awards duly authorized by the Company or (“FSFR”y) the exercise of any stock options, restricted stock units, or similar awards relating to any Equity Interests of the Company granted to such Investor by the Company following due authorization by the Company and (B) this clause (i) shall not prohibit an Investor from exercising its rights under the limited partnership agreement of Stockholder to acquire Shares proposed to be sold by Stockholder to prepay or repay outstanding indebtedness or to acquire interests in Stockholder proposed to be sold by any other Investor (subject to Section 3.01(d)) or any securities convertible from acquiring Shares through the pro rata distribution of Shares by Stockholder pursuant to Section 3.04; (ii) call or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special seek to call a meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence initiate any person with respect to any of the matters covered stockholder proposal for action by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except engage in accordance with Section 3.4, the “solicitation” of “proxies” (as such terms are defined under Regulation 14A under the Exchange Act) or seek consents to do so;
(d) agree, attempt, seek or propose to deposit vote any voting securities of the Companies in any voting trust Company, including soliciting consents or similar arrangement, or subject any securities of the Companies to any arrangement or agreement taking other action with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance calling of a “contested solicitation” or take special meeting of the Company’s stockholders (other action for the election or removal of directors than with respect to nominees to the Company or FSFRBoard designated by the Company, including any action that is intended to, or is reasonably likely in each case solely for such nominees whose election to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to Board has been recommended by the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
Company Board); (fiii) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related Act) with respect to the reasonable unwinding of Company or any such group currently existing Equity Interests (other than to the extent that Stockholder and the Investors constitute a “group” as of the date of this Agreement) hereof and other than to the extent ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇, by themselves and/or with any person who is not identified on Schedule I hereto (any such personStockholder and its general partner, constitute a “Third Party”group” at any time), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
; (giv) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, to seek representation onon or to control or influence the management, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or to obtain representation on the investment advisor Company Board of FSFRDirectors (other than with respect to the nomination of ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ to the Company Board, as determined by the Company Board in the ordinary course); (v) solicit consents from the Company enter into or FSFR stockholders agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise act be involved in or seek part of, any acquisition transaction, merger or other business combination or similar transaction relating to act by written consent, (vi) conduct a referendum all or part of the Company or FSFR stockholders or (vii) make a request for any stockholders list of its Subsidiaries or any other books and records in Sellers’ capacity as a Company acquisition transaction for all or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership part of any securities issued by the assets of the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR Subsidiaries or any of their current respective businesses or former directors any recapitalization, restructuring, change in control or officers similar transaction involving the Company or any of its Subsidiaries; (including derivative actions)vi) request that the Company or the Company Board amend, other than (i) litigation waive or otherwise consent to enforce the provisions any action inconsistent with any provision of this Agreement Section 3.01(a) (provided, this clause (vi) shall not prohibit communications by Stockholder with the Unaffiliated Directors on a confidential basis not involving public disclosure and not requiring any public announcement by the Company); (iivii) counterclaims enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
foregoing activities; (nviii) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, act as a financing source for or otherwise invest in any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make ; (ix)make any statement publicly disparaging the Company, its business or its management; (x) publicly disclose through its authorized representatives any intention, plan or arrangement inconsistent with any of the foregoing; oror (xi) expressly take any initiative with respect to the Company which could require the Company to make a public announcement regarding (A) such initiative or (B) any of the foregoing activities.
(ob) take The restrictions set forth in Sections 3.01(a) and 3.01(d) shall not apply to the Investment Company Investors and their respective Affiliates; provided that such restrictions shall become applicable to any action challenging Investment Company Investor and its Affiliates if at any point such Investment Company Investor or any of its Affiliates shall in any way act in coordination with, cooperate with or otherwise form a “group” (within the validity meaning of Section 13(d)(3) of the Exchange Act) with Stockholder with respect to the Company (for the avoidance of doubt, other than any activities relating solely to the Investment Company Investors’ ownership of interests in Stockholder and their status as an Investor).
(c) Without limiting Stockholder’s obligations under Section 3.01(a), each of ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ shall not, at any time, act in coordination with, cooperate with or enforceability otherwise form a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any Investment Company Investor (or any of its Affiliates or permitted transferees under the limited partnership agreement of Stockholder) with respect to the Company (for the avoidance of doubt, other than any activities relating solely to each such person’s ownership of an interest in Stockholder and their status as an Investor).
(d) Notwithstanding anything to the contrary herein (except as provided in Section 3.01(b)), and in addition to the restrictions set forth in this AgreementSection 3.01 and otherwise herein, during the Standstill Period, no Investor shall acquire from Stockholder and/or any other Investor(s), in one or make more transactions (including any exercise of any Investor’s rights under the limited partnership agreement of Stockholder to acquire Shares proposed to be sold by Stockholder to prepay or repay outstanding indebtedness or to acquire interests in Stockholder proposed to be sold by any other Investor, or in any way advance distribution by Stockholder), any request direct or proposal that indirect beneficial ownership of or Rights with respect to any Equity Interests if such acquisition would cause such Investor and its Affiliates, in the Companyaggregate, FSFRto beneficially own, directly or indirectly, including through their pro rata interest in the Common Stock owned by Stockholder, greater than 9.9 percent of the outstanding Common Stock. For purposes of this Section 3.01, the Company Board “pro rata interest in the Common Stock owned by Stockholder” of an Investor, in the aggregate, is equal to the product of (i) the number of shares of Common Stock beneficially owned, directly or indirectly, by Stockholder, multiplied by (ii) the FSFR Board amendpercentage of the outstanding partnership interests of Stockholder beneficially owned, modify directly or waive indirectly, by such Investor, in the aggregate.
(e) Nothing in this Agreement (including any provision of definition used in this Agreement) shall be deemed to prohibit, following the Lock-Up End Date, any Investor (including in its capacity as a Holder) from entering into or performing, settling, terminating, cancelling or unwinding any hedging transaction or derivative agreement relating to the Equity Interests that establishes a “short” position with respect to Equity Interests.
(f) Notwithstanding anything in Section 3.01(a) to the contrary, during the Standstill Period, Tencent shall be permitted to acquire shares of Common Stock, subject to the following limitations: (i) under no circumstances may Tencent acquire beneficial ownership of shares of Common Stock that would result in Tencent and its Affiliates, in the aggregate, having beneficial ownership of greater than 9.9 percent of the outstanding Common Stock (including its pro rata interest in the Common Stock owned by Stockholder), (ii) subject to the limitation set forth in clause (i), Tencent may acquire beneficial ownership of additional shares of Common Stock of up to the greater of (A) 2.0 percent of the outstanding Common Stock, or (B) if at any time the Stockholder Percentage Interest is less than 24.9 percent, additional shares of Common Stock representing a percentage of the outstanding Common Stock equal to the excess of 24.9 percent over the Stockholder Percentage Interest at such time, and (iii) Tencent will vote, or cause to be voted, any shares of Common Stock which it acquires (or acquires beneficial ownership of) in accordance with the exception set forth in this Section 3.01(f) in accordance with the recommendation, if any, of a majority of the Unaffiliated Directors.
Appears in 3 contracts
Sources: Stockholders Agreement (Asac Ii Lp), Stockholders Agreement (Activision Blizzard, Inc.), Stock Purchase Agreement (Activision Blizzard, Inc.)
Standstill. Effective from the date of this Agreement and continuing (a) TPG hereby agrees that until the later earliest of (i) such time as TPG and its Affiliates no longer collectively own at least five percent (5%) of the certification of votes for outstanding Common Stock, (ii) the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR third (as defined below3rd) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none anniversary of the Sellers shallEffective Date or (iii) a Change of Control of the Company, and Sellers shall cause their respective controlled without the prior written approval of the Company, neither TPG nor any of its Affiliates not to(other than any Non-Private Equity Business of TPG or its Affiliates) will, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitacquire, offer or propose to acquire or agree to acquire, Beneficial Ownership of more than fifteen percent (15%) of the outstanding Voting Securities of the Company in the aggregate, other than Voting Securities in excess of fifteen percent (15%) of the outstanding Voting Securities of the Company acquired (A) as a result of the exercise of any rights or obligations set forth in this Agreement, (B) pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction, (C) with the consent of the majority of the non-TPG Directors or (D) directly from the Company;
(ii) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or knowingly encourage otherwise be involved in or in any way engage in any solicitation part of, any proxies acquisition transaction, merger or consents other business combination relating to all or become a “participant” in part of the Company or any of its subsidiaries or any acquisition transaction for all or part of the assets of the Company or any of its subsidiaries or any of their respective businesses;
(iii) other than a “solicitation,” directly or indirectly, of a “proxy” (as such terms are defined in under Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”, disregarding clause (iv) of proxies or consents (including, without limitation, Rule 14a-1(1)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b)) seeking approval of consents that seeks the election to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, the Company Board solely with respect to securities any of the TPG Nominated Directors permitted by the terms hereof to serve on such Company Board, make, or in any way participate in, any such “solicitation” of “proxies” to vote, or seek to advise or influence any person or entity with respect to the voting of, any Common Stock of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)its subsidiaries;
(biv) make any proposal for consideration by stockholders at any annual call or special seek to call a meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered Company’s subsidiaries or initiate any stockholder proposal for action by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFRCompany, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to and the reasonable unwinding of any such group currently existing as of the date of this Agreementrules and regulations thereunder) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementVoting Securities;
(gv) make deposit any disclosureSecurities of the Company into a voting trust, communication, announcement or statement regarding subject any intent, purpose, plan Securities of the Company to any agreement or proposal arrangement with respect to the FSC Board voting of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFRsuch securities, or the management, policies other agreement or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreementarrangement having similar effect;
(hvi) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, on the Company Board or a change in the FSFR Board, (iii) seek the removal of any member composition of the Company Board or number of directors elected by the FSFR Boardholders of Common Stock or a change in the number of such directors who represent TPG, other than as expressly permitted pursuant to this Agreement; and
(vii) bring any action or otherwise act to contest the validity of this Section 4.1; provided, that nothing in clauses (ii), (iii), (iv) seek, alone or (vi) of this Section 4.1(a) shall apply to the TPG Nominated Director solely in concert with others, his or support any Third Party in seeking, to replace the investment advisor her capacity as a director of the Company or to actions taken by TPG or any of its Affiliates to prepare the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek TPG Nominated Director to act in such capacity.
(b) The limitations provided in Section 4.1(a) shall, upon the occurrence of any of the following events, immediately be suspended until the expiration of the time period set forth below in this Section 4.1(b), but only so long as TPG or any of its Affiliates (other than any Non Private Equity Business of TPG or its Affiliates) did not directly or indirectly assist, facilitate, encourage or participate in any such events:
(i) on the commencement (as defined in Rule 14d-2 of the Exchange Act) by written consent, (vi) conduct any Person of a referendum tender or exchange offer seeking to acquire Beneficial Ownership of a number outstanding shares of Voting Securities of the Company or FSFR stockholders or (vii) make that, if consummated, would result in a request for any stockholders list or any other books Change of Control and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued which is recommended by the Company or FSFRBoard; provided, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sellthat TPG has not facilitated, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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 foregoingencouraged, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingparticipated in such tender offer; or
(oii) take any action challenging on the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, public announcement by the Company Board or a duly constituted committee of the FSFR Company Board amend(a) to solicit one or more proposals for a transaction that, modify if consummated, would result in a Change of Control or waive (b) to pursue discussions or negotiations or make diligence materials available, with respect to an unsolicited proposal for a transaction that, if consummated, would result in a Change of Control; provided, that in each case TPG has not facilitated, encouraged, or otherwise participated in such tender offer. provided, however, that upon (y) any provision withdrawal or lapsing of any such tender or exchange offer referred to in Section 4.1(b)(i) which does not result in a Change of Control, or (z) the abandonment by the Company Board or a duly constituted committee of the Company Board of a process to solicit a proposal of the type referred to in Section 4.1(b)(ii) without a Change of Control having occurred and without an agreement to effect a Change of Control, as the case may be, the limitations provided in Section 4.1(a) (except to the extent then suspended as a result of any other event specified in this Section 4.1(b)) shall again be applicable for so long as and only to the extent provided in this Agreement.
Appears in 3 contracts
Sources: Voting Agreement (Cousins Properties Inc), Stockholders Agreement (Cousins Properties Inc), Voting Agreement (Parkway Properties Inc)
Standstill. Effective from the date of this Agreement and continuing until the later None of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Investors may (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”and each Investor shall cause its Affiliates and Associates that it controls, and use reasonable efforts to cause its other Affiliates and Associates, not to), except to without the extent expressly permitted by the terms of this Agreement, none prior written consent of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toBoard:
(a) publicly propose that any Investor or Qualified Stockholder or any Affiliate or Associate of any Investor or Qualified Stockholder enter into, directly or indirectly, in any mannermerger or other business combination involving Holdco or propose to purchase, alone directly or in concert with others:indirectly, a material portion of the assets of Holdco or any material subsidiary of Holdco, or make any such proposal privately if it would reasonably be expected to require Holdco to make a public announcement regarding such proposal;
(ab) solicitmake, or knowingly encourage or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any "solicitation" of "proxies" (as such terms are used in Regulation 14A promulgated under the Exchange Act) to vote or consent with respect to any Voting Securities of Holdco or become a "participant" in any "election contest" (as such terms are defined or used 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 14a-11 under the Exchange Act, either such company’s constituent documents or otherwise) with respect to Holdco;
(c) knowingly adviseform, encourage, support, instruct join or influence any person participate in or encourage the formation of a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities of the matters covered by this Section 3.1 or with respect to the voting or disposition Holdco, other than a group consisting solely of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soInvestors and Qualified Stockholders;
(d) agree, attempt, seek or propose to deposit any securities Voting Securities of the Companies in any Holdco into a voting trust or similar arrangement, or subject any securities of the Companies such Voting Securities to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
other than any such trust, arrangement or agreement (ei) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended only parties to, or is reasonably likely to result inbeneficiaries of, the replacement of the investment advisor of the Company or FSFR, or a modification to which are Investors and Qualified Stockholders and (ii) the terms of which do not require or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in expressly permit any way participate party thereto to act in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance manner inconsistent with this Agreement;
(ge) make initiate, propose or otherwise solicit stockholders of Holdco for the approval of one or more stockholder proposals with respect to Holdco as described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce any disclosure, communication, announcement or statement regarding other person to initiate any intent, purpose, plan or stockholder proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this AgreementHoldco;
(hf) effect except in accordance with Section 3.04, seek election to or seek to place a representative on the Board or seek the removal of any member of the Board;
(g) call or seek to have called any meeting of the stockholders of Holdco;
(A) solicit, seek to effect, offer negotiate with or propose provide non-public information to effect, cause or participate in, or in any way assist or facilitate any other person with respect to, (B) make any statement or proposal, whether written or oral, to effect the Board or seekany director or officer of Holdco with respect to, offer or propose (C) otherwise make any public announcement or proposal whatsoever with respect to effect any form of business combination transaction (with any person) involving a change of control of Holdco or participate inthe acquisition of a substantial portion of the equity securities or assets of Holdco or any material subsidiary of Holdco, any tender or exchange offer, including a merger, consolidation, acquisitiontender offer, scheme, arrangement, business combination, recapitalization, reorganization, sale exchange offer or acquisition liquidation of Holdco's assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any restructuring, recapitalization or similar transaction with respect to Holdco or any material subsidiary of their subsidiaries Holdco; provided, however, that the foregoing shall not (x) apply to any discussion between or joint ventures among the Investors and the Qualified Stockholders or any of their respective securities officers, employees, agents or representatives or (eachy) in the case of clause (B) above, an “Extraordinary Transaction”)be interpreted to limit the ability of any Investor or Qualified Stockholder, or make any statement designee of any Investor or disclosure regarding any intentQualified Stockholder, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with on 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 provision of this Agreement or take any action that could require the Company or FSFR Board to make any public disclosure relating such statement or proposal or to discuss any such intentproposal with any officer or director of or advisor to Holdco or advisor to the Board unless, purposein either case, planit would reasonably be expected to require Holdco to make a public announcement regarding such discussion, proposal statement or conditionproposal;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, control or influence the management or policies of Holdco (viexcept for (A) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity voting as a Company holder of Voting Securities in accordance with the terms of such Voting Securities and (B) actions taken as a director or FSFR stockholderofficer of Holdco);
(j) purchase publicly disclose any intention, plan or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by arrangement inconsistent with the Company or FSFRforegoing, or make any securities convertible into such disclosure privately if it would reasonably be expected to require Holdco to make a public announcement regarding such intention, plan or exchangeable for securities issued by the Company or FSFR;arrangement; or
(k) selladvise, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option assist (including by knowingly providing or arranging financing for the sale of or otherwise transfer or dispose of (each, a “Transfer”that purpose) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist encourage any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 3 contracts
Sources: Investors' Agreement (Time Warner Inc/), Investors' Agreement (Turner Broadcasting System Inc), Agreement and Plan of Merger (Time Warner Inc)
Standstill. Effective from (a) The Purchaser agrees that, during the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallit shall not, and Sellers shall cause their respective controlled each of its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:others take any of the following actions without the prior consent of the Company (acting through a resolution of the Company’s directors not including any SL Directors):
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Board of Directors or to approve any proposals submitted to a vote of the stockholders of the Company that have not been authorized and approved, or recommended for approval, by the Board of Directors, or become a “participant” in a any contested “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A or used under the Securities Exchange Act) for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act of 1934or otherwise);
(ii) form, as amended (the “Exchange Act”) of proxies join, encourage, influence, advise or consents (including, without limitation, in any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating way participate in any “withholdgroup” or similar campaign), (as such term is defined in each case, Section 13(d)(3) of the Exchange Act) with any persons who are not its Affiliates with respect to any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4as expressly permitted by this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single “person” under Section 13(d) of the Exchange Act Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities that would result in the Purchaser (except together with its Affiliates), having Beneficial Ownership of more than 19.9% in the aggregate of the shares of the Company Common Stock outstanding at such participation related time (assuming all the Notes are converted), excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Company Common Stock (or the exercise thereof) to any SL Director as compensation for their membership on the Board of Directors; provided that nothing herein will require any Notes or shares of Company Common Stock to be sold to the reasonable unwinding extent the Purchaser and its Affiliates, collectively, exceeds the ownership limit under this paragraph as the result of a share repurchase or any such group currently existing as other Company actions that reduces the number of outstanding shares of Company Common Stock. For purposes of this Section 4.18(a)(iii), no securities Beneficially Owned by a portfolio company of the date Purchaser or its Affiliates will be deemed to be Beneficially Owned by Purchaser or any of its Affiliates only so long as (x) such portfolio company is not an Affiliate of the Purchaser for purposes of this Agreement, (y) neither the Purchaser nor any of its Affiliates has encouraged, instructed, directed, supported, assisted or advised, or coordinated with, such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither the Purchaser or any of its Affiliates is a member of a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), that portfolio company with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or substantially all assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the Purchaser or disclosure any of its Affiliates of any securities of the Company into any Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or the vote by the Purchaser or any of its Affiliates of any voting securities of the Company with respect to any Extraordinary Transaction in accordance with the recommendation of the Board of Directors;
(v) (A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) seek representation on the Board of Directors, except as expressly set forth herein, (C) seek the removal of any member of the Board of Directors (other than a Purchaser Designee in accordance with Section 4.07), (D) solicit consents from stockholders or otherwise act or seek to act by written consent with respect to the Company, (E) conduct a referendum of stockholders of the Company or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(vi) take any action in support of or make any proposal or request that constitutes: (A) controlling or changing the Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, or (C) any other material change in the Company’s management, business or corporate structure (except pursuant to any action or transaction permitted by Section 4.18(a)(iv));
(vii) (A) 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, (B) 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 (C) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any Extraordinary Transaction of its securities or assets 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;; or
(iix) (i) call enter into any discussions, negotiations, agreements or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert understandings with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withforegoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with respect to any of the foregoing.
(b) The foregoing provisions of Section 4.18(a) shall not be deemed to prohibit (i) any action that may be taken by any Purchaser Designee acting solely as a director of the Company consistent with his fiduciary duties as a director of the Company if such action does not include or result in any public announcement or disclosure by such Purchaser Designee, the Purchaser or make any investment of its Affiliates, (ii) the Purchaser or any of its Affiliates or their respective directors, executive officers, partners, employees, managing members, advisors or agents (acting in such capacity) from communicating on a confidential basis with the Company’s directors, officers or enter advisors or (iii) the Purchaser or any of its Affiliates from (A) making a confidential proposal to the Company or the Board of Directors for a negotiated transaction with the Company involving a Change in Control, (B) pursuing and entering into any arrangement such transaction with the Company and (C) taking any other person that engages, or offers or proposes to engage, actions in any furtherance of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or.
(oc) take any action challenging Notwithstanding the validity foregoing provisions of Section 4.18(a) or enforceability anything in this Agreement to the contrary, the Purchaser and its Affiliates shall not be restricted from (i) acquiring securities with the prior written consent of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR(ii) acquiring securities pursuant to Section 4.16, (iii) participating in rights or securities offerings conducted by the Company, (iv) receiving stock dividends or similar distributions made by the Company, (v) tendering Company Common Stock as permitted by Section 4.02 or in a Third Party Tender/Exchange Offer after the Restricted Period (or effecting any Permitted Loan or Permitted Debt Financing Transaction under Section 4.02), (vi) disposing of Company Common Stock by operation of a statutory amalgamation, statutory arrangement or other statutory procedure involving the Company Board or (vii) any conversion of the FSFR Board amend, modify Notes or waive any provision other securities acquired not in contravention of this AgreementSection 4.18.
Appears in 3 contracts
Sources: Investment Agreement (Cornerstone OnDemand Inc), Investment Agreement (Cornerstone OnDemand Inc), Investment Agreement (Cornerstone OnDemand Inc)
Standstill. Effective from Without the date of this Agreement and continuing until the later approval or written consent of the certification Board of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this AgreementDirectors, none of the Sellers General Atlantic Stockholders or any of their Affiliates, and none of the Coinvestor Stockholders or any of their respective Affiliates shall, severally and Sellers not jointly, at any time prior to the Standstill Expiration Date:
(a) purchase or otherwise acquire, or propose or offer to purchase or acquire, any shares of the Company's capital stock, whether by tender offer, market purchase, privately negotiated purchase, merger or otherwise, any shares of the Company's capital stock or any Common Stock Equivalents in excess of the number of shares of the Company's capital stock and Common Stock Equivalents purchased pursuant to the Stock Purchase Agreement (subject to adjustments and issuances of additional Common Stock Equivalents pursuant to the Amended and Restated Certificate of Determination with respect to the Series D Preferred Stock) and the Convertible Note Purchase and Exchange Agreement (subject to adjustments and issuances of additional Common Stock Equivalents pursuant to the Certificate of Determination with respect to the Series E Stock) with respect to each such Stockholder and its Affiliates considered severally and not jointly with any other Stockholder and its Affiliates (the "Standstill Ceiling"); provided, however, that in no event shall cause their respective controlled any such Stockholder acquire any Shares in a transaction in such an amount that when aggregated with the shares of the Company's capital stock already owned by such Stockholder, the acquisition of such shares of the Company's capital stock would require stockholder approval under applicable Nasdaq rules and policies; and provided, further, that the dividends that accrue on the shares of Series D Preferred Stock and Series E Preferred Stock pursuant to the terms thereof shall be excluded for purposes of calculating whether or not a Stockholder and its Affiliates not tohave exceeded the Standstill Ceiling;
(b) except as specified in this Agreement, make, or in any way participate, directly or indirectly, in any manner, alone or in concert with others:
"solicitation" of "proxy" (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined or used in Regulation 14A under of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies to vote, or consents (including, without limitation, seek to advise or influence any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, Person with respect to securities the voting of, any shares of the Company Company's capital stock, or Fifth Street Senior Floating Rate Corp. become a "participant" in any "election contest" (“FSFR”) as such terms are used or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities defined in Regulation 14A of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act) relating to the election of directors of the Company; provided, either such company’s constituent documents however, that none of the General Atlantic Stockholders, the Coinvestor Stockholders or otherwiseany of their respective Affiliates shall be deemed to have engaged in a "solicitation" or to have become a "participant" by reason of the membership of designees of the General Atlantic Stockholders, the Coinvestor Stockholders or any of their respective Affiliates on the Board of Directors;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership"group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise act in concert with any Person for the purpose of acquiring, limited partnershipholding, syndicate voting or other disposing of any shares of the Company's capital stock; provided, however, that (i) the General Atlantic Stockholders may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock, (ii) Vectis CP Holdings, LLC and any Affiliate thereof that acquires shares of the Company's capital stock (the "Vectis Stockholders") may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock, (iii) Cenwell Limited, Campina Enterprises Limited, Great Affluent Limited, Dragonfield Limited, or Lion Cosmos Limited or any Affiliate thereof that acquires shares of the Company's capital stock (the "Coinvestor Sub-group") may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock; and provided further, that, for the avoidance of doubt, the General Atlantic Stockholders, the Vectis Stockholders and the Coinvestor Sub-group may not together act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock; or
(d) request the Company (or its directors, officers, employees or agents), to take any action which would reasonably be expected to require pursuant to law the Company to make a public announcement or proposal or offer with respect to (i) any form of business combination or transaction involving the Company including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such personmerger, a “Third Party”)consolidation, with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition purchase of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR dissolution or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor liquidation of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect instigate, encourage or assist any Person to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with do 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Stockholders Agreement (Critical Path Inc), Stockholders Agreement (Critical Path Inc)
Standstill. On the Effective from the date of this Agreement and continuing until the later Date, each of the certification of votes for Purchaser Parties will deliver to New Osisko a covenant that it will not, during the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Standstill Period (as defined below) 2017 Annual Meeting without the consent of Stockholders New Osisko: (the “Standstill Period”), except i) offer to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toacquire or agree to acquire, directly or indirectly, in by purchase or otherwise, more than 5% of any mannervoting securities or securities convertible into or exchangeable for voting securities (with notice to be provided to New Osisko when 1% of any voting securities or securities convertible into or exchangeable for voting securities have been acquired, alone or in concert with others:
(a) solicitand for each additional 1% acquired thereafter), or knowingly encourage direct or indirect rights or options to acquire any voting securities, of New Osisko; (ii) make, or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 limitationparticipate in, any solicitation of consents that seeks proxies to call a special meeting of stockholders vote, or by encouraging seek to advise or participating in influence any “withhold” or similar campaign), in each case, other person with respect to the voting of any voting securities of New Osisko; (iii) otherwise seek to control or influence the Company management, directors or Fifth Street Senior Floating Rate Corp. corporate policies of New Osisko or to obtain representation on New Osisko’s board of directors; (“FSFR”iv) engage in any discussions or negotiations, enter into any securities convertible agreement or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make submit any proposal for consideration by stockholders at or offer (with or without conditions) in connection with any annual business combination or special meeting of the stockholders of the Company other acquisition transaction or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents extraordinary transaction involving New Osisko; or otherwise;
(cv) knowingly advise, encourage, support, instruct enter into any discussions or influence arrangements with any person third party with respect to any of the matters covered by this Section 3.1 foregoing; or with respect to the voting or disposition make any public announcement of any securities intention to do or take any of the Companies at any annual or special meeting foregoing. The “Standstill Period” shall be the period commencing on the Effective Date and ending on the earlier of stockholders (i) the fifth anniversary of the Company or FSFR, except in accordance with Section 3.4Effective Date, or seek to do so;
(dii) agree, attempt, seek the date upon which New Osisko shall have approved or propose to deposit any securities of the Companies in any voting trust or similar arrangemententered into, or subject any securities announced the approval or entering into of, an agreement, transaction or series of the Companies to any arrangement or agreement related transactions with respect to the voting thereofa person other than such Purchaser Party, except in accordance a person under common control with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, such Purchaser Party or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in person acting jointly or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of concert with the Exchange Act foregoing (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”)) having as its object the acquisition, with respect to any directly or indirectly, of not less than 20% of the outstanding voting or equity securities of the Companies New Osisko or take any other action that would interfere with the ability assets of Sellers to vote in accordance with this Agreement;
New Osisko or its subsidiaries (gor both) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions Yamana representing not less than 20% of the Company’s investment advisory agreement, the FSFR Board net asset value or contribution to earnings of Directors (the “FSFR Board”), the FSFR investment advisor or the terms New Osisko and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct on a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementconsolidated basis.
Appears in 2 contracts
Sources: Arrangement Agreement (Agnico Eagle Mines LTD), Arrangement Agreement (Yamana Gold Inc.)
Standstill. Effective from (i) For a period of five (5) years beginning on the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders hereof (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallGE shall not, and Sellers shall cause their respective controlled its Representatives and Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) 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 (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate inin or knowingly encourage, any acquisition of Company Common Stock (including in derivative form) or any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase combination or other extraordinary similar transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries or joint ventures its Subsidiaries that would result in GE and its Affiliates beneficially owning more than 65% of the voting power of the outstanding shares of Company Common Stock; provided that GE shall be permitted to make a private proposal to the Non-GE Directors that would not reasonably be expected to require the Company or any of their respective securities its Affiliates to make any public announcement or other disclosure. The foregoing shall not prohibit:
(eachA) GE or any of its Representatives or Affiliates from acquiring Company Common Stock by way of stock splits, an “Extraordinary Transaction”stock dividends, reclassifications, recapitalizations or other distributions by the Company to all holders of Company Common Stock on a pro rata basis;
(B) acquisitions by GE or any of its Representatives or Affiliates of Company Common Stock (A) approved by the Conflicts Committee or (B) pursuant to the exercise of the preemptive rights set forth in Section 4.3; or
(C) GE or any of its Affiliates from acquiring Company Common Stock pursuant to and in accordance with the terms of the Exchange Agreement and Section 3.03 or Section 3.05 of the Newco LLC Agreement.
(ii) Without limiting Section 4.2(b)(i), during the Standstill Period GE shall not, and shall cause its Representatives and Affiliates not to, directly or indirectly, in any manner, (A) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) to vote any Company Common Stock in connection with the election of the Non-GE Directors or the removal of any Non-GE Director, (B) solicit, knowingly encourage or knowingly facilitate, directly or indirectly, any third party to engage in any such solicitation, (C) make any public statement (or disclosure regarding statement to an Other Stockholder) in support of any intentsuch third-party solicitation or against any of the Company’s director nominees, purpose(D) form, plan join or proposal in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Extraordinary Transaction Company Common Stock or this Agreement that is inconsistent with the provisions of this Agreement(E) call, including 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 or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of, or otherwise seek or assist in the calling of any a special meeting of the stockholders at either of the Company or FSFR, including by written consentCompany; provided that subclauses (D) and (E) shall only apply if taken in furtherance of the actions described in subclauses (A), (iiB) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, and (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(iC) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and subsection (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement).
Appears in 2 contracts
Sources: Transaction Agreement and Plan of Merger (Baker Hughes Inc), Transaction Agreement and Plan of Merger (General Electric Co)
Standstill. Effective (a) Subject to Section 7(b), Recipient hereby agrees that, for a period of one year from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders hereof (the “Standstill Period”), except Recipient and its subsidiaries and other controlled affiliates will not (and neither Recipient nor its subsidiaries and other controlled affiliates will knowingly assist, or provide or arrange financing to the extent expressly permitted by the terms of this Agreementor for, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not others in order to), directly or indirectly, in any manner, acting alone or in concert with others:
, unless specifically invited in writing in advance by the Company: (ai) solicitacquire or agree to acquire, make an offer to the Company to acquire or propose to the Company or publicly propose to acquire (or request permission from the Company to do so) ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any material assets or businesses of the Company or any securities issued by the Company, or knowingly encourage any option or other right to acquire such ownership (including from a third party); (ii) publicly seek to influence or control the management or the policies of the Company; (iii) propose to the Company or publicly propose to obtain representation on the board of directors (or any committee thereof) of the Company; (iv) solicit or participate in any way engage in any the solicitation of, of any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies Company; (v) call, propose to the Company to call, publicly propose to call or take cause to be called any other action that would interfere with meeting of stockholders of the ability Company; (vi) form, join or participate in a “group” (as defined in the Securities Exchange Act of Sellers to vote in accordance with this Agreement;
(g1934 and the rules promulgated thereunder) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions any of the Company’s investment advisory agreementforegoing; (vii) advise, knowingly assist, knowingly encourage, act as a financing source for or otherwise invest in any third party engaging in any of the FSFR Board of Directors foregoing activities; (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either viii) propose to the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or publicly propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries the Company’s subsidiaries; or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require ix) request the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify amend or waive any provision of this Section 7(a). Recipient further agrees that, during the Standstill Period, neither it nor any of its subsidiaries or other controlled affiliates will, without the written consent of the Company, take any initiative or other action with respect to the Company or any of the subsidiaries of the Company that would reasonably be expected to require the Company to make a public announcement regarding (x) any of the activities, events or circumstances referred to in the preceding sentences of this Section 7(a), (y) the possibility of a Transaction, any similar transaction or the pursuit of strategic alternatives or any strategic alternative by the Company or (z) the possibility of Recipient or any person affiliated with Recipient acquiring control of the Company whether by means of a business combination or otherwise. Subject to Section 7(b)(ii), Recipient represents to the Company that neither it nor any of its subsidiaries or other controlled affiliates owns (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any securities of the Company as of the date hereof. For the avoidance of doubt, nothing in this Section 7 shall prohibit Recipient or any of its Representatives from (x) engaging in good faith, confidential negotiations with the Company or any of the Company’s Representatives regarding a possible Business Transaction involving the Company and Recipient, or (y) making proposals or requests to the Company or taking other actions in each case in connection with such negotiations.
(b) Notwithstanding anything to the contrary contained in this Agreement, (i) if, at any time during the Standstill Period, the Company enters into a binding, definitive agreement with respect to a Business Transaction with any third party, then the restrictions set forth in Section 7(a) shall immediately terminate and cease to be of any further force or effect, and (ii) Recipient (without being deemed to violate Section 7(a)) may own and may acquire shares or other ownership interests in any publicly traded mutual fund or similar entity that owns shares of stock of the Company.
Appears in 2 contracts
Sources: Confidentiality Agreement, Confidentiality Agreement (Gilead Sciences Inc)
Standstill. Effective from the date of this Agreement and continuing until the later Each of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none members of the Sellers shallKleinheinz Group agrees that, during the Standstill Period and provided that Company has complied and is complying with the Principal Obligations, he or it will not, and Sellers shall he or it will cause their respective controlled each of such person’s Affiliates or agents or other persons acting on his or its behalf not to, directly and will cause his or indirectly, in any manner, alone or in concert with othersits respective Associates not to:
(a) solicit, or knowingly encourage or in submit any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”otherwise) or any securities convertible notice of nomination or exchangeable into other business for consideration, or exercisable nominate any candidate for any such securities (collectivelyelection to the Board, “securities of the Companies”)other than as expressly permitted by this Agreement ;
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under ” within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board Common Stock or deposit any shares of Directors (the “Company Board”)Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, the Company investment advisor or the terms and conditions other than solely with other members of the Company’s investment advisory agreement, Kleinheinz Group or one or more Affiliates of a member of the FSFR Board Kleinheinz Group with respect to the Common Stock currently owned as set forth in Section 2(c) of Directors (this Agreement or to the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either extent such a group may be deemed to result with the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions any of its Affiliates as a result of this Agreement;
(hc) solicit proxies or written consents of stockholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at the 2010 and 2011 Annual Meetings of Stockholders;
(d) seek, in any capacity other than as a member of the Board, to call, or to request the call of, a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement;
(e) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of their respective the media or securities (eachanalyst) of, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to obtain any Extraordinary Transaction waiver, or this Agreement that is inconsistent with consent under, or any amendment of, any of the provisions of Section 4(d) or this Agreement, including any intent, purpose, plan or proposal that is conditioned onSection 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Kleinheinz Group or their Affiliates or Associates) to obtain any waiver, amendmentconsent under, nullification or invalidation amendment of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionAgreement;
(ig) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of publicly disparage any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor management of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCompany;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nh) enter into any negotiations, arrangements, understanding understandings or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade assist or encourage, any Third Party to take any action or make any statement 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, or otherwise ; or
(i) take or cause or induce or assist others to take any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of . It is understood and agreed that this Agreement, or make or Agreement shall not be deemed to prohibit Kleinheinz from engaging in any way advance any request or proposal that lawful act in his capacity as a director of the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Board Representation Agreement (Alloy Inc), Board Representation Agreement (SRB Management, L.P.)
Standstill. Effective from the date of this Agreement and continuing until the later Each of the certification members of votes for the Simcoe Group agrees that, during the Standstill Period and provided that the Company 2017 Annual Meeting of Stockholders has complied and is complying with the Principal Obligations, he or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallit will not, and Sellers shall he or it will cause their respective controlled each of such person’s Affiliates or agents or other persons acting on his or its behalf not to, directly and will cause his or indirectly, in any manner, alone or in concert with othersits respective Associates not to:
(a) solicit, or knowingly encourage or in submit any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A stockholder proposal (pursuant to Rule 14a-8 promulgated by the SEC 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”otherwise) or any securities convertible notice of nomination or exchangeable into other business for consideration, or exercisable nominate any candidate for any such securities (collectivelyelection to the Board, “securities of the Companies”)other than as expressly permitted by this Agreement;
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under ” within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board Common Stock or deposit any shares of Directors (the “Company Board”)Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, the Company investment advisor or the terms and conditions other than solely with other members of the Company’s investment advisory agreement, Simcoe Group or one or more Affiliates of a member of the FSFR Board Simcoe Group with respect to the Common Stock currently owned as set forth in Section 2(c) of Directors (this Agreement or to the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either extent such a group may be deemed to result with the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions any of its Affiliates as a result of this Agreement;
(hc) solicit proxies or written consents of stockholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at the 2010 and 2011 Annual Meetings of Stockholders.
(d) seek, in any capacity other than as a member of the Board, to call, or to request the call of, a special meeting of the stockholders of the Company, or seek to make, or make, a stockholder proposal at any meeting of the stockholders of the Company or make a request for a list of the Company’s stockholders (or otherwise induce, encourage or assist any other person to initiate or pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of the Company, except as expressly permitted by this Agreement;
(e) effect or seek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate inin (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any tender offer or exchange offer, merger, consolidationacquisition or other business combination involving the Company or any of its subsidiaries, acquisition, scheme, arrangement, business combination, or (iii) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its subsidiaries;
(f) publicly disclose, or joint ventures cause or facilitate the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of their respective the media or securities (eachanalyst) of, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to obtain any Extraordinary Transaction waiver, or this Agreement that is inconsistent with consent under, or any amendment of, any of the provisions of Section 4(d) or this Agreement, including any intent, purpose, plan or proposal that is conditioned onSection 5, or otherwise seek (in any manner that would require public disclosure by any of the members of the Simcoe Group or their Affiliates or Associates) to obtain any waiver, amendmentconsent under, nullification or invalidation amendment of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionAgreement;
(ig) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of publicly disparage any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor management of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCompany;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nh) enter into any negotiations, arrangements, understanding understandings or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade assist or encourage, any Third Party to take any action or make any statement 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, or otherwise ; or
(i) take or cause or induce or assist others to take any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of . It is understood and agreed that this Agreement, or make or Agreement shall not be deemed to prohibit ▇▇▇▇▇▇▇▇▇▇ from engaging in any way advance any request or proposal that lawful act in his capacity as a director of the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Board Member Agreement (Alloy Inc), Board Member Agreement (Alloy Inc)
Standstill. Effective from (a) During the date of this Agreement and continuing until Standstill Period, the later Stockholder agrees that, without the prior written consent of the certification of votes for Company, the Company 2017 Annual Meeting of Stockholders Stockholder will not and will not permit its Affiliates to:
(i) purchase or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not tootherwise acquire, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, agree or knowingly encourage offer to purchase or in any way engage in any solicitation ofotherwise acquire, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectlyshares of Common Stock if, as such terms are defined a result thereof, the Stockholder, together with its Affiliates and with any members of a Group in Regulation 14A under which the Securities Exchange Act Stockholder or any of 1934its Affiliates is a member, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)would, in each casethe aggregate, with respect to securities beneficially own shares of Common Stock representing more than the 19.9% of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Common Stock;
(bii) make initiate or propose any proposal matter for consideration by stockholders at any annual or special meeting a vote of the stockholders of the Company or FSFR"solicit," or become a "participant," directly or indirectly, whether pursuant to Rule 14a-8 in any "solicitation" of proxies (as such terms are defined under the Exchange Act) from any holder of shares of capital stock of the Company in connection with any vote or other action on any matter or agree or announce its intention to vote with any Person undertaking a "solicitation" or seek to advise, either such company’s constituent documents encourage or otherwiseinfluence any Person with respect to the voting of any voting securities of the Company;
(ciii) knowingly advisemake any public announcement, encouragepublic proposal or public offer with respect to any Extraordinary Transaction involving the Company or its securities or assets;
(iv) enter into any discussions, supportnegotiations, instruct arrangements or influence understandings with any person third party with respect to any of the matters covered by this Section 3.1 foregoing, or otherwise form, join or in any way participate in a Group in connection with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soforegoing;
(dv) agree, attempt, seek or propose to deposit any securities shares of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities the shares of the Companies Common Stock to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing shares of Common Stock except as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingset forth hereunder; or
(oA) take any action challenging the validity request permission or enforceability of this Agreement, or make or participate in any way advance effort to do any of the foregoing or (B) request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify to amend or waive any provision of this Agreementparagraph, in a manner which would require public disclosure of such action under applicable law. Stockholder will reasonably promptly advise the Company of any proposal made to it by a third party with respect to any of the foregoing.
(b) Nothing contained in this Section shall be deemed in any way to prohibit or limit any transactions in the ordinary course of business between the Company and any of its Subsidiaries or between the Stockholder and any of its Affiliates or between the Stockholder and its Affiliates and their portfolio companies.
Appears in 2 contracts
Sources: Standstill Agreement (Manugistics Group Inc), Standstill Agreement (Warburg Pincus Private Equity Viii L P)
Standstill. Effective Employee agrees that, for a period of three (3) years from the date of this Agreement and continuing until the later Termination Date, unless Employee shall have been specifically invited in writing by Trex to perform any of the certification following actions, neither Employee nor any of votes for the Company 2017 Annual Meeting of Stockholders his “associates” or the certification of votes for the FSFR “affiliates” (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange 1934 Act”)) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating shall in any “withhold” manner, directly or similar campaign)indirectly, in each case(a) effect or seek, with respect to securities of the Company offer or Fifth Street Senior Floating Rate Corp. propose (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents publicly or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4effect, or seek to do so;
(d) agree, attempt, seek cause or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join participate in or in any way participate in assist (including acting as a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(dfinancing source) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) 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 (whether publicly or otherwise) to effect or participate inin (i) any acquisition of any securities of any kind or class, whether equity or debt, or assets of any Trex Affiliate (or of any successor to or person in control of Trex or having beneficial ownership thereof), except that this clause (i) shall not prohibit Employee from acquiring any securities of Trex of any kind or class, whether equity or debt, of any Trex Affiliate (or of any successor to or person in control of Trex or having beneficial ownership thereof) provided that the beneficial ownership of such securities by (x) Employee and (y) Employee’s “associates” and “affiliates” (as such terms are defined in Rule 12b-2 under the ▇▇▇▇ ▇▇▇) does not in the aggregate equal or exceed two and one-half percent (2.5%) of Trex’s outstanding securities and securities deemed outstanding pursuant to Rule 13d-3(d)(1) under the 1934 Act, (ii) any tender or exchange offer, mergermerger or other business combination involving any Trex Affiliate, consolidation, acquisition, scheme, arrangement, business combination, (iii) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with the provisions of this Agreement, including any intent, purpose, plan or proposal that is conditioned onTrex Affiliate, or would require waiver(iv) any solicitation of proxies or consents to vote any voting securities of any Trex Affiliate, amendment(b) form, nullification join or invalidation ofin any way participate in a “group” (as defined in Rule 13d-5 under the ▇▇▇▇ ▇▇▇) that shall take any of the actions referred to in clause (a) above, any provision of this Agreement or (c) take any action that could require the Company or FSFR which might force any Trex Affiliate to make a public announcement regarding any public disclosure relating to any such intent, purpose, plan, proposal or condition;
of the types of matters set forth in clause (ia) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation onabove, or nominate (d) enter into any candidate to, the Company Board discussions or the FSFR Board, (iii) seek the removal of arrangements with any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims third party with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make . Nothing herein shall prohibit Employee from selling any investment security of any Trex Affiliate held by him provided that such sale is permissible under applicable federal and state securities laws and in or enter into any arrangement accordance with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementcontractual restrictions.
Appears in 2 contracts
Sources: Severance Agreement, Release and Severance Agreement (Trex Co Inc)
Standstill. Effective (a) Subject to Section 5.7, from the date of this Agreement and continuing until the later second (2nd) anniversary of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Closing Date (the “Standstill Period”), except to the extent expressly permitted by Trustee shall ensure that each Trust and the terms of this Agreement, none Representatives of the Sellers shallTrustee who are directors, officers or employees of the Trustee do not, and Sellers shall will use its reasonable best efforts to cause their respective controlled Affiliates not toits other Representatives that are acting on its behalf in connection the Reclassification, alternatives thereto, the Company or the interests of the Trusts therein to not, directly or indirectly, in any manner, alone except with the prior written invitation or in concert with othersconsent of the Board:
(ai) solicitother than the Existing Shares, acquire or knowingly encourage beneficially own any shares of Class A Stock, Class B Stock or other equity securities of the Company (including, from and after the Closing, any shares of Common Stock) or any options, warrants, swaps, forward contracts or other derivative instruments with respect thereto (each, “Company Securities”); provided, that the Trustee, on behalf of the Trusts, shall not be prohibited from entering into customary “short position” derivative transactions with respect to Company Securities for the purpose of hedging the economic exposure to the Trusts of owning the Existing Shares, as long as the Trustee, on behalf of the Trusts, retains the ability at all times to vote the Company Securities subject to any such arrangements;
(ii) make, or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” (as such terms are term is 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 14a-1 under the Exchange Act, either such company’s constituent documents including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) to vote or otherwiserefrain from voting any Company Securities;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(giii) make any disclosure, communication, announcement director nomination or statement regarding any intent, purpose, plan or shareholder proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiv) effect act, whether alone or with others, to propose or seek to effectpropose any merger, offer or propose to effectshare exchange, cause or participate inbusiness combination, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, restructuring, recapitalization, liquidation or similar transaction of or involving, or any sale or other disposition or acquisition of any part of the consolidated assets of, the Company;
(v) solicit, initiate, knowingly encourage or knowingly facilitate, or negotiate with any person(s) with respect to any merger, consolidation, acquisition, scheme, arrangementshare exchange, business combination, tender or exchange offer, restructuring, recapitalization, reorganizationliquidation or similar transaction of or involving, or any sale or other disposition or acquisition of assetsany part of the consolidated assets of, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct deposit any Company Securities in a referendum of the voting trust or similar arrangement or enter into or subject any Company Securities to any voting agreement or FSFR stockholders or similar arrangement;
(vii) make act as a request for financing source for, or facilitate any stockholders list or financing by, any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(jperson(s) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing;
(viii) take any action in pursuit of any of the types of matters set forth in this Section 5.6 which would, or would reasonably be expected to, require the Company to make a public announcement regarding any investment of the types of matters set forth in this Section 5.6 or in response thereto;
(ix) disclose any intention, plan or arrangement, or enter into any arrangement negotiations, arrangements or understandings with any other person that engagesperson(s), or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement which are inconsistent with any of the foregoing;
(x) form or join a group (within the meaning of Section 13(d)(3) of the Exchange Act) with any person(s) in connection with the taking of any action set forth in this Section 5.6, or act together with or knowingly encourage any person or group in taking any such actions; or
(oxi) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, to the Company Board or the FSFR Board amendits Representatives, modify directly or indirectly, to amend or waive any provision of this AgreementSection 5.6. For the avoidance of doubt, subject to Section 5.4, this Section 5.6(a) shall not limit the ability of the Trustee or the Trusts to vote for or against, grant proxies, written consents or ballots in relation to, tender into or abstain from taking any action in connection with transactions, proposals or other matters initiated and coordinated by other persons unaffiliated with the Trustee and the Trusts and acting independently of, and not in conjunction with or at the behest or instigation of, the Trustee and the Trusts.
(b) The Trustee, on behalf of each Trust, hereby irrevocably and unconditionally agrees, during the Standstill Period, at each annual or special meeting of the Shareholders, however called, including any adjournment or postponement thereof, and in connection with any action proposed to be taken by written consent of the Shareholders, that the Trustee, on behalf of each Trust, shall, in each case to the fullest extent that the Covered Shares are entitled to vote thereon or consent thereto, appear, in person or by proxy, at each such meeting or otherwise cause the Covered Shares to be counted as present thereat for purposes of determining a quorum.
Appears in 2 contracts
Sources: Reclassification Agreement (BESSEMER TRUST Co NATIONAL ASSOCIATION), Reclassification Agreement (Hubbell Inc)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (Except as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted contemplated by the terms of this Agreement, none without the prior written consent of the Sellers shallBoard, during the Commitment Period, each member of the Stockholder Group shall not, and Sellers shall cause their respective controlled Affiliates its Representatives not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit(i) acquire, offer or agree to acquire, or knowingly encourage acquire rights to acquire (except by way of stock dividends or in any way engage in any solicitation ofother distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis), any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Company or any voting rights decoupled from the underlying voting securities which would result in the Stockholder Group and its Representatives (together with any other person or group) owning, controlling or otherwise having any beneficial ownership interest in 15.0% or more of the then-outstanding shares of the Common Stock; or (ii) knowingly sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, the voting securities of the Company or any voting rights decoupled from the underlying voting securities held by the Stockholder Group and its Representatives to (A) any Third Party which would result in such Third Party, together with its Representatives, having any beneficial ownership interest of 5.0% or more of the then-outstanding shares of Common Stock (except for Schedule 13G filers that are mutual funds, pension funds or index funds or similar passive institutional investors with no known history of activism); or (B) Lone Star Value Investors, LP or any of its affiliates and associates (“Lone Star Value”).
(b) except as such terms contemplated by Section 1(g) of this Agreement, (i) nominate or recommend for nomination a person for election at any Stockholder Meeting at which directors of the Board are defined to be elected or any solicitation of written consents of stockholders of the Company to remove any directors of the Board; (ii) initiate, encourage or participate in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) any solicitation of proxies or consents in respect of any election contest or removal contest with respect to the Company’s directors; (includingiii) submit any stockholder proposal for consideration at, without limitationor bring any other business before, any Stockholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies or consents that seeks to call a special meeting in respect of stockholders any stockholder proposal for consideration at, or by encouraging bring any other business before, any Stockholder Meeting; (v) initiate, encourage or participating participate in any solicitation of written consents of stockholders; or (vi) initiate, encourage or participate in any “withhold” or similar campaign), in each case, campaign with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) any Stockholder Meeting or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities solicitation of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting written consents of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwisestockholders;
(c) knowingly adviseexcept as contemplated by Section 1(g) of this Agreement, encourageform, support, instruct join or influence in any person way participate in any group with respect to any voting securities of the matters covered by this Section 3.1 Company in connection with any election or removal contest with respect to the voting or disposition of any securities Company’s directors (other than with other members of the Companies at Stockholder Group or one or more of their affiliates to the extent that any annual or special meeting of stockholders of such person signs a joinder to this Agreement reasonably agreeable to the Company or FSFR, except in accordance with Section 3.4, or seek to do soCompany);
(d) agreeexcept as contemplated by Section 2(a) of this Agreement, attempt, seek or propose to deposit any Company voting securities of the Companies in any voting trust or similar arrangement, or subject any Company voting securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek except as contemplated by Section 2(a) of this Agreement, seek, alone or encourage in concert with others, to amend any person to submit nominations in furtherance provision of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s articles of incorporation or FSFR’s investment advisory agreementBylaws; provided, however, that nothing herein shall be deemed to restrict the ability of ▇▇. ▇▇▇▇▇▇▇▇▇ to propose any changes he deems appropriate in accordance with his fiduciary duties as a director of the Company;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group except as defined under contemplated by Section 13(d2(a) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) 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 acquisition of 15.0% or more of any securities, or any material assets or businesses, of the Company or any of its subsidiaries; any tender offer or exchange offer, merger, consolidation, acquisition, scheme, arrangement, share exchange or other business combination, combination involving 15.0% or more of any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures any material portion of its or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;businesses; or
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(ng) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any Third Party with respect to the foregoing, or advise, finance, assist, encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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 respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Stockholder Agreement (Ciber Inc), Stockholder Agreement (Stevenson Bobby G)
Standstill. Effective (a) Each member of the Ramius Group agrees that, from the date of this Agreement and continuing until ten (10) business days prior to the later of the certification of votes deadline set for the Company 2017 submission of shareholder proposals for the 2010 Annual Meeting of Stockholders or Shareholders of the certification of votes for Company established in connection with the FSFR (as defined below) 2017 2010 Annual Meeting of Stockholders (such period, the “Standstill Period”), except to the extent expressly permitted by the terms neither it nor any of this Agreement, none of the Sellers shallits Affiliates or Associates under its control or direction will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (or the “Exchange Act”rules or regulations thereunder) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignshareholders), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”Company, except in accordance with Sections 1(b) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)above;
(bii) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant seek to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct support or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies Company at any annual or special meeting of stockholders of the Company or FSFR2008 Annual Meeting and 2009 Annual Meeting, except in accordance with Section 3.4, or seek to do soSections 1(b) above;
(diii) agreeinitiate, attemptpropose or otherwise “solicit” stockholders of the Company for the approval of any stockholder proposal;
(iv) form, seek join or propose in any way participate in any “group” pursuant to Rule 13d-5 promulgated by the SEC under the Exchange Act with respect to any securities of the Company, other than a “group” that includes all or some lesser number of the persons identified as part of the Ramius Group, but does not include any other members who are not currently identified as Ramius Group members as of the date hereof; or
(v) deposit any securities of the Companies Company in any a voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;of the securities of the Company.
(eb) knowingly seek or encourage any person to submit nominations As used in furtherance of a this Agreement, the terms “contested solicitationAffiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; and the terms “person” or take other action for the election “persons” shall mean any individual, corporation (including not-for-profit), general or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a limited partnership, limited partnershipliability company, syndicate joint venture, estate, trust, association, organization or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding entity of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies kind or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementnature.
Appears in 2 contracts
Sources: Settlement Agreement (Agilysys Inc), Settlement Agreement (Ramius LLC)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicitDuring the Standstill Period, without the prior written approval of a majority of the Independent Directors, Freeport shall not, and shall not permit its controlled affiliates to: (i) acquire, offer or propose to acquire, or knowingly encourage agree or seek to acquire, or solicit the acquisition of, by purchase or otherwise, any equity, debt or equity-linked securities of the Issuer if, following such acquisition, Freeport and its controlled affiliates would own securities of the Issuer representing more than 103% of the percentage of the outstanding shares of Common Stock (including shares of Common Stock issuable upon conversion of any Preferred Shares owned by Freeport and its controlled affiliates) owned by Freeport and its controlled affiliates on the date hereof (including shares of Common Stock issuable upon conversion of any Preferred Shares owned by Freeport and its controlled affiliates); (ii) form, join or in any way engage participate in, or enter into any agreement, arrangement or understanding with, a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any equity or equity-linked securities of the Issuer; (iii) commence any tender or exchange offer for any securities of the Issuer; (iv) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in any solicitation or part of, any proxies acquisition transaction, merger or consents other business combination relating to all or become a “participant” in a “solicitation,” directly part of the Issuer or indirectly, as such terms are defined in Regulation 14A under any of its subsidiaries or any acquisition transaction for all or part of the Securities Exchange Act assets of 1934, as amended the Issuer or any of its subsidiaries or any of their respective businesses; (the “Exchange Act”v) of proxies call or consents (including, without limitation, any solicitation of consents that seeks seek to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company Issuer or FSFRinitiate any stockholder proposal for action by stockholders of the Issuer; (vi) enter into any discussions, whether pursuant to Rule 14a-8 under the Exchange Actnegotiations, either such company’s constituent documents arrangements or otherwise;
(c) knowingly advise, encourage, support, instruct or influence understandings with any other person with respect to any of the matters covered by this Section 3.1 foregoing activities; (vii) advise, assist, encourage, act as a financing source for or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise invest in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise foregoing activities; (viii) take or cause any action inconsistent with the purpose and intent of this Section 2.3; (ix) disclose any intention, plan or make any statement arrangement inconsistent with any of the foregoing, (x) with respect to any of the foregoing provisions of this paragraph, request the Issuer to amend or waive any such provisions or otherwise consent to any action inconsistent with any such provisions; or
(oxi) take any initiative with respect to the Issuer which could require the Issuer to make a public announcement regarding (A) such initiative or (B) any of the foregoing activities; or (xii) bring any action challenging or otherwise act to contest the validity or enforceability of this Section 2.3.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the members of Freeport’s Board of Directors who are not also Shared Management Members shall be permitted to communicate on a confidential basis with the Independent Directors regarding any matter, including potential transactions between Freeport and the Issuer and potential waivers or make or in any way advance any request or proposal that amendments to the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision terms of this Agreement.
(c) Each of the Parties agrees that any supplement, modification, amendment, or waiver by the Issuer of the terms or provisions of that certain Stockholder Agreement, dated as of September [_], 2010, by and between the Issuer and Plains, with respect to a transaction, arrangement or understanding involving both Plains or its controlled affiliates and Freeport or its controlled affiliates must be approved in writing in advance by a committee of the Board consisting solely of members of the Board who are Independent Directors.
Appears in 2 contracts
Sources: Stock Purchase Agreement (McMoran Exploration Co /De/), Stock Purchase Agreement (Freeport McMoran Copper & Gold Inc)
Standstill. Effective from the date of this Agreement (a) Investor Standstill. Subject to Section 4.03(b) through Section 4.03(d), each Investor covenants and continuing until the later of the certification of votes for agrees with the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)that, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallsuch Investor shall not, and Sellers shall cause their respective controlled its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others, without the prior written consent of the Company, take any of the actions set forth in clauses (i) through (iv) below (clauses (i) through (iv) below, collectively, the “Investors Standstill”) :
(ai) solicitin any way acquire, offer or propose to acquire or agree to acquire legal title to or beneficial ownership of any Company Securities to the extent the Ownership Percentage of such Investor will exceed its Ownership Cap as a result of such acquisition;
(ii) make any public announcement with respect to, or knowingly encourage submit to the Company or any of its directors, officers, representatives, trustees, employees, attorneys, advisors, agents or Affiliates, any proposal for the acquisition of a majority of the Company Securities (including through tender offer, merger, consolidation, restructuring or recapitalization of the Company) if the submission of such proposal will require the making of a public announcement by the Company unless the Company shall have made a prior written request to such Investor to submit such a proposal;
(iii) seek or propose to influence, advise, change or control the management, the board of directors of the Company, governing instruments or policies or affairs of the Company by way of any public communication, or make, or in any way engage participate in, any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote, or seek to advise or influence any solicitation Person with respect to the voting of, any proxies or consents Company Securities or become a “participant” in a any “solicitation,election contest” directly or indirectly, as such terms are defined and used in Regulation 14A) with respect to Company Securities; provided, however, that nothing in this clause (iii) shall prevent such Investor or its Affiliates from (x) voting in any manner any Company Securities over which such Investor or such Affiliates has Beneficial Ownership or (y) communicating privately with shareholders of the Company to the extent such communication does not constitute a “solicitation” of “proxies,” as such terms are defined or used in Regulation 14A under the Securities Exchange Act and the number of 1934, as amended persons with whom such Investor communicates is fewer than ten (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign10), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);; or
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fiv) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group ” (as defined under in Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of Act) in connection with any such group currently existing as action contemplated by any of the date of this Agreementforegoing;
(v) enter into any negotiations or arrangements with any person who is not identified on Schedule I hereto (third party, or finance any such person, a “Third Party”)third party, with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(ovi) make any public disclosure inconsistent with clauses (i) through (v), or knowingly take any action challenging with the validity or enforceability intent of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, requiring the Company Board or to make any public disclosure with respect to the FSFR Board amend, modify matters set forth in clauses (i) through (v).
(vii) make a request to amend or waive any provision of this AgreementSection 4.03.
Appears in 2 contracts
Sources: Investor Rights Agreement (JD.com, Inc.), Investor Rights Agreement (Vipshop Holdings LTD)
Standstill. Effective from During the date of this Agreement and continuing until Cooperation Period, without the later prior written consent of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Board, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallMill Road shall not, and Sellers shall cause their respective controlled its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit(i) nominate or recommend for nomination a person for election at any Shareholder Meeting at which directors of the Board are to be elected; (ii) initiate, or knowingly encourage or in any way engage participate in any solicitation ofof proxies in respect of any election contest with respect to the Company’s directors; (iii) submit any shareholder proposal for consideration at, or bring any other business before, any Shareholder Meeting; (iv) initiate, encourage or participate in any solicitation of proxies in respect of any shareholder proposal for consideration at, or bring any other business before, any Shareholder Meeting; or (v) initiate, encourage or participate in any “withhold” or similar campaign with respect to any Shareholder Meeting or any solicitation of written consents of shareholders; provided, however, that nothing in this Section 3 shall restrict Mill Road from privately identifying any candidates that the Board may consider adding to fill any vacancies that may arise from time to time on the Board, whether through the resignation of any member of the Board or become otherwise, as long as such actions do not create a “participant” in a “solicitation,” public disclosure obligation for Mill Road;
(b) 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 such terms are defined in Regulation 14A a single “person” under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), through swap or hedging transactions or otherwise, any voting securities of the Company or any voting rights decoupled from the underlying voting securities of the Company, except that this Agreement shall not prohibit Mill Road from acquiring additional shares of Class A Common Stock in excess of the greater of (i) 17.5% of proxies the Company’s outstanding Class A Common Stock or consents (ii) 525,167 shares of Class A Common Stock;
(c) 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 solicitation of consents that seeks to call a special meeting of stockholders swap or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents hedging transactions or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person 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 matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soCompany;
(d) agreeform, attempt, seek join or propose in any way participate in any group with respect to deposit any voting securities of the Companies Company in connection with any election or removal contest with respect to the Company’s directors or any shareholder proposal or other business brought before any Shareholder Meeting;
(e) deposit any Company voting securities in any voting trust or similar arrangement, or subject any Company voting securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate to amend any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member provision of the Company Board Company’s Restated Certificate of Incorporation or Restated By-laws;
(g) demand or make a request for an inspection of the FSFR Board, Company’s books and records;
(ivh) seek, alone or in concert communicate with others, or support any Third Party in seeking, to replace the investment advisor shareholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the investment advisor Exchange Act;
(i) (i) make any offer or proposal (with or without conditions) with respect to (A) any merger, acquisition, recapitalization, restructuring, disposition or other business combination, involving Mill Road or its Affiliates or Associates and the Company, and/or (B) any of FSFR, (v) solicit consents from the Company assets or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum business of the Company or FSFR stockholders its Affiliates or any rights or options to acquire any such assets or business from any person, (ii) solicit a third party to make an offer or proposal (with or without conditions a “Third Party Transaction”) with respect to (A) any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, and/or (B) any of the assets or business of the Company or its Affiliates or any rights or options to acquire any such assets or business from any person, or publicly encourage, initiate or support any third party in making such an offer or proposal, or (viiiii) make publicly comment on any proposal regarding any Third Party Transaction; provided, however, the restrictions in this Section 3 shall not apply to Mill Road or its Affiliates and Associates (and no further action by the Company shall be required to terminate such restrictions) in response to (A) a request public offer by a third party to effect a Third Party Transaction; (B) the public announcement of the entering into an agreement or arrangement by the Company with any third party to effect a Third Party Transaction; or (C) the public recommendation of the Board of a Third Party Transaction; and provided, further, that nothing in this Section 3 shall restrict Mill Road from privately making any such offer or proposal to the Board as long as such actions do not create a public disclosure obligation for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderMill Road;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any third party with respect to the foregoing, or advise, finance, assist, encourage or seek to knowingly persuade or encourage, any Third Party third party to take any action or make any statement 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 respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement materially inconsistent with any of the foregoing; or
(ok) take any action challenging the validity or enforceability of this Section 3 or this Agreement, or publicly make or in any way advance publicly any request or proposal that the CompanyCompany or Board amends, FSFR, the Company Board modifies or the FSFR Board amend, modify or waive waives any provision of this Agreement. Nothing in this Agreement shall be deemed to limit the ability of any Mill Road Designee to exercise his fiduciary duties under law solely in his capacity as a director of the Company.
Appears in 2 contracts
Sources: Settlement Agreement (Ecology & Environment Inc), Settlement Agreement (Mill Road Capital II, L.P.)
Standstill. Effective from (a) TLI agrees that during the date term of this Agreement and continuing until Agreement, it shall not, alone or in conjunction with any third party, without the later prior written consent of the certification Company: (i) acquire or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of votes for the Company 2017 Annual Meeting such that TLI’s beneficial ownership of Stockholders the Company’s Common Stock would exceed 38% of the then currently outstanding Common Stock; (ii) make, initiate or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except submit any proposal to the extent expressly permitted Company’s stockholders not supported by a majority of the Board (and in no event with respect to any recommended nominee or slate of nominees for election to the Board except in accordance with the terms of this Agreementagreement), none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toor in any way participate, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” to vote (as such terms are defined used in Regulation 14A under the rules of the Securities and Exchange Act of 1934, as amended Commission (the “Exchange ActSEC”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)), in each case, with respect or seek to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct advise or influence any person with respect to any of the matters covered by this Section 3.1 or entity with respect to the voting or disposition of any voting securities of the Companies at Company except to vote in favor of matters for which the Board has recommended a vote “for”; (iii) make any annual public announcement with respect to, or special meeting submit a proposal for, or offer of stockholders of (with or without conditions) any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or FSFR, except in accordance with Section 3.4, any of its securities or seek to do so;
assets; (d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fiv) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group ” as defined under in Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of Act, in connection with any such group currently existing as of the date of this Agreementforegoing; (v) with enter into any person who is not identified on Schedule I hereto (any such person, a “Third Party”), voting agreement with respect to any securities Company capital stock; or (vi) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any of the Companies or take any other action that would interfere with the ability of Sellers to vote events described in accordance with clauses (i) through (vi) above; provided that, this Agreement;
(gSection 2(a) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), shall be suspended if the Company investment advisor enters into any definitive agreement for, or the terms and conditions Board approves or recommends, or there is otherwise announced, any acquisition by any Person (other than TLI) or group of (x) more than 50% of the Company’s investment advisory agreementoutstanding voting securities (measured immediately following the closing of the proposed transaction) with the purpose or effect of changing control of the Company or (y) substantially all of the consolidated assets of the Company (collectively, the FSFR Board a “Change of Directors (the “FSFR BoardControl Proposal”), the FSFR investment advisor or the terms and conditions including by way of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale purchase of assets or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase otherwise having that purpose or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to effect and any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek suspension pursuant to call or request this sentence shall terminate and the calling obligations hereunder shall be reinstated upon the termination of any meeting Change of stockholders at either Control Proposal; provided, further, that nothing contained in this Section 2(a) shall prevent or restrict TLI from making any non-public proposal to the Company or FSFRBoard. “Person” shall mean any individual, including by written consentcorporation, (ii) seeklimited liability company, alone or in concert with otherspartnership, representation onassociation, or nominate any candidate totrust, the Company Board or the FSFR Boardjoint venture, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions)unincorporated organization, other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreemententity.
Appears in 2 contracts
Sources: Nomination Agreement (TL Investment GmbH), Nomination Agreement (Lantronix Inc)
Standstill. Effective from Prior to the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Termination Date, except to the extent expressly permitted by the terms of as otherwise provided in this Section 3 or elsewhere in this Agreement, none without Disinterested Director Approval, Coliseum shall not, directly or indirectly:
(a) (i) acquire, 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 Sellers shall, and Sellers shall cause their respective controlled Affiliates not toCompany generally on a pro rata basis), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, through swap or hedging transactions or otherwise, any additional Voting Securities of the Company (other than through a broad-based market basket or index) or any voting rights decoupled from the underlying Voting Securities that would cause Coliseum’s ownership of Voting Securities to exceed 44.4% of the total outstanding Common Stock; or (ii) sell its shares of Common Stock, other than in open market sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings or in a transaction in which the purchaser agrees to be bound by the provisions of this Section 3; provided that the foregoing shall not restrict any acquisition of securities directly from the Company.
(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; (ii) knowingly initiate, encourage or participate in any mannersolicitation of proxies in respect of any election contest or removal contest with respect to the Company’s directors; (iii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) knowingly initiate, encourage or participate in any solicitation of proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting; or (v) knowingly initiate, encourage or participate in any “withhold” or similar campaign with respect to any Stockholder Meeting;
(c) form or join any Section 13 “group” with respect to any Voting Securities of the Company, including in connection with any election or removal contest with respect to the Company’s directors or any stockholder proposal or other business brought before any Stockholder Meeting;
(d) seek publicly, alone or in concert with others:
(a) solicit, or knowingly encourage or in to amend any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities provision of the Company Charter or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4Bylaws;
(e) knowingly seek or encourage (i) make any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors public proposal with respect to or (ii) make any public statement or otherwise publicly seek to encourage, advise or assist any person in so publicly encouraging or advising with respect to: (A) any change in the Company number or FSFRterm of directors serving on the Board or the filling of any vacancies on the Board, including (B) any action that is intended to, change in the capitalization or is reasonably likely to result in, the replacement dividend policy of the investment advisor Company, (C) any other change in the Company’s management, governance, corporate structure, affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Company or FSFRto be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a modification class of equity securities of the Company to the terms or conditions become eligible for termination of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under registration pursuant to Section 13(d12(g)(4) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a term “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) 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, Extraordinary Transaction” means any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, sale, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase restructuring or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any a Third Party that, in seekingeach case, to replace the investment advisor results in a change in control of the Company or the investment advisor sale of FSFRsubstantially all of its assets; provided, (v) solicit consents from however, that solely for the Company or FSFR stockholders or otherwise act or seek purposes of the foregoing definition, Coliseum shall be deemed not to act by written consent, (vi) conduct a referendum have control of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute); provided, solicit or joinhowever, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.that
Appears in 2 contracts
Sources: Cooperation Agreement (Purple Innovation, Inc.), Cooperation Agreement (Coliseum Capital Management, LLC)
Standstill. Effective from the date of this Agreement and continuing until the later For so long as any portion of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with othersSenior Loan remains unpaid:
(a) solicit, Subordinate Lender shall waive any rights it may have pursuant to the Subordinate Mortgage to approve or knowingly encourage to consent to any action of Borrower if Senior Lender shall have approved or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as consented to 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)action;
(b) make Subordinate Lender shall not, without the prior written consent of Senior Lender take any proposal for consideration by stockholders at any annual or special meeting Enforcement Action (hereinafter defined). For the purposes of this Agreement, the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or term “Enforcement Action” shall mean with respect to the voting Subordinate Loan Documents, the acceleration of all or disposition any part of the Subordinate Loan, any foreclosure proceedings, the exercise of any securities power of sale, the acceptance by the holder of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance Subordinate Mortgage of a “contested solicitation” deed or take other action for the election or removal assignment in lieu of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result inforeclosure, the replacement obtaining of a receiver, the investment advisor seeking of default interest (provided, however, that nothing shall prevent the Company or FSFR, or a modification accrual of such default interest pursuant to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”Subordinate Note), the Company investment advisor taking of possession or the terms and conditions control of the Company’s investment advisory agreementProperty, the FSFR Board suing on any of Directors (the “FSFR Board”)Subordinate Note or any guaranty or other obligation contained in the Subordinate Loan Documents, the FSFR investment advisor exercising of any banker’s lien or the terms and conditions rights of FSFR’s investment advisory agreementset-off or recoupment, the Companycommencement of any bankruptcy, FSFRreorganization or insolvency proceedings against Borrower under any federal or state law, or the management, policies or affairs taking of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) 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 seekenforcement action against the Property, offer or propose to effect or participate inprovided however that if Senior Lender accelerates the maturity of Borrower’s indebtedness secured by the Senior Loan Documents, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving then Subordinate Lender may accelerate the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities indebtedness secured by the Subordinate Loan Documents (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or but may not take any further action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionwithout Senior Lender’s consent as aforesaid);
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Operating Agreement (New York Times Co), Operating Agreement (New York Times Co)
Standstill. Effective from (a) The Purchaser agrees that, during the date Standstill Period, it shall not, and shall cause each of this Agreement its Affiliates (collectively and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (individually, the “Standstill PeriodPurchaser Affiliates,”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates ) not to, directly or indirectly, in any manner, alone or in concert with others:others take any of the following actions without the prior consent of the Company (acting through a resolution of the Company’s directors not including any SLP Affiliated Directors):
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Board of Directors or to approve any proposals submitted to a vote of the stockholders of the Company that have not been authorized and approved, or recommended for approval, by the Board of Directors, or become a “participant” in a any contested “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A or used under the Securities Exchange Act) for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act of 1934or otherwise);
(ii) form, as amended (the “Exchange Act”) of proxies join, encourage, influence, advise or consents (including, without limitation, in any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating way participate in any “withholdgroup” or similar campaign), (as such term is defined in each case, Section 13(d)(3) of the Exchange Act) with any persons who are not Purchaser Affiliates with respect to any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4as expressly permitted by this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single “person” under Section 13(d) of the Exchange Act Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities that would result in the Purchaser (except together with the Purchaser Affiliates), having Beneficial Ownership in more than 10.0% in the aggregate of the shares of the Company Common Stock outstanding at such participation related time (assuming all the Notes are converted on a fully physical settlement basis), excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Company Common Stock (or the exercise thereof) to any SLP Affiliated Director as compensation for their membership on the Board of Directors; provided that nothing herein will require any Notes or shares of Company Common Stock to be sold to the reasonable unwinding extent the Purchaser and the Purchaser Affiliates, collectively, exceeds the ownership limit under this paragraph as the result of a share repurchase or any such group currently existing as other Company actions that reduces the number of outstanding shares of Company Common Stock. For purposes of this Section 4.03(a)(iii), no securities Beneficially Owned by a portfolio company of the date Purchaser or its Affiliates will be deemed to be Beneficially Owned by Purchaser or any of its Affiliates only so long as (x) such portfolio company is not an Affiliate of the Purchaser for purposes of this Agreement, (y) neither the Purchaser nor any Purchaser Affiliate has encouraged, instructed, directed, supported, assisted or advised, or coordinated with, such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither the Purchaser or any of its Affiliates is a member of a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), that portfolio company with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany;
(giv) make transfer, directly or indirectly, through swap or hedging transactions or otherwise, the Notes or Company Common Stock Beneficially Owned by the Purchaser or its Affiliates or any disclosureeconomic or voting rights decoupled from the underlying securities held by the Purchaser or its Affiliates to any Third Party that, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board knowledge of Directors the Purchaser at the time it enters into such transaction, would result in such Third Party, together with its Affiliates and Associates, having Beneficial Ownership in the aggregate of more than 12.5% of the shares of Company Common Stock outstanding at such time; provided, that (x) the “Company Board”)Purchaser or its Affiliates, as applicable shall provide written notice to the Company investment advisor if it has actual knowledge (after good faith inquiry) at the time of such transaction that such transfer, directly or indirectly, through swap or hedging transactions or otherwise, of its Notes or Company Common Stock to any Third Party would result in such Third Party, together with its Affiliates and Associates, having Beneficial Ownership in the terms and conditions aggregate of more than 9.9% of the Company’s investment advisory agreementshares of Company Common Stock outstanding at such time and (y) nothing in this clause (iv) shall in any way prohibit, the FSFR Board of Directors limit or restrict any transfer (the “FSFR Board”)A) pursuant to a Permitted Loan or any foreclosure thereunder, the FSFR investment advisor (B) pursuant to a Third Party Tender/Exchange Offer or the terms and conditions of FSFR’s investment advisory agreementpursuant to a merger, consolidation or similar transaction entered into by the Company, FSFR(C) in a bona fide underwritten public offering or in a broker transaction pursuant to Rule 144 (provided that, in relation to such Rule 144 offering, the Purchaser has not instructed or encouraged such broker to sell such Notes or Company Common Stock to a specific Third Party or class of Third Parties which would result in a violation of this clause (iv)) or (D) in a derivatives transaction entered into with, or the managementpurchased from, policies a bank, broker-dealer or affairs of either the Company or FSFR, or with respect to this Agreement, other recognized derivatives dealer that is inconsistent with not a hedge fund or activist investor or, to the provisions knowledge of this AgreementPurchase, an Affiliate of a hedge fund or activist investor;
(hv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or substantially all assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the Purchaser or disclosure regarding a Purchaser Affiliate of any intent, purpose, plan securities of the Company into any Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or proposal the vote by the Purchaser or a Purchaser Affiliate of any voting securities of the Company with respect to any Extraordinary Transaction or this Agreement that is inconsistent in accordance with the provisions recommendation of this Agreement, including any intent, purpose, plan or proposal that is conditioned on, or would require waiver, amendment, nullification or invalidation of, any provision the Board of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionDirectors;
(ivi) (iA) call or seek to call or request the calling of any meeting of stockholders at either of the Company or FSFRCompany, including by written consent, (iiB) seekseek representation on the Board of Directors, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Boardexcept as expressly set forth herein, (iiiC) seek the removal of any member of the Company Board or the FSFR Boardof Directors (other than an SLP Affiliated Director in accordance with Section 4.07), (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (vD) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consentconsent with respect to the Company, (viE) conduct a referendum of stockholders of the Company or FSFR stockholders or (viiF) make a request for any stockholders stockholder list or any other Company books and records in Sellers’ capacity as a Company records, whether pursuant to Section 220 of the DGCL or FSFR stockholderotherwise;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(ovii) take any action challenging the validity or enforceability in support of this Agreement, or make any proposal or in any way advance any request that constitutes: (A) controlling or proposal that changing the Board of Directors or management of the Company, FSFRincluding any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the Company Board capitalization or dividend policy of the FSFR Board amendCompany, modify (C) any other material change in the Company’s management, business or waive any provision of this Agreement.corporate structure,
Appears in 2 contracts
Sources: Investment Agreement, Investment Agreement (Symantec Corp)
Standstill. Effective 4.3.1 Quest Diagnostics agrees that, for a period of four (4) years from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Closing Date, except unless specifically invited in writing to the extent expressly permitted do so by the terms Board of this AgreementDirectors of TriPath, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toneither Quest Diagnostics nor any its affiliates will, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitacquire, offer, seek, propose or knowingly encourage agree to acquire by purchase or in any way engage in any solicitation ofotherwise, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders individually or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in joining a partnership, limited partnership, syndicate or other "group, including, without limitation, a group " (as defined under such term is used in Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such personact, a “Third Party”to "acquire"), any (i) assets or businesses of TriPath or (ii) securities of TriPath entitled to vote, or securities convertible into or exercisable or exchangeable or redeemable for such securities (collectively, "Voting Securities");
(ii) form, join, participate in or encourage the formation of a partnership, limited partnership, syndicate or other group for the purpose of acquiring, holding or disposing of assets or businesses of TriPath or Voting Securities;
(iii) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) or become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to TriPath, or initiate, propose or otherwise solicit stockholders of TriPath for the approval of one or more stockholder proposals with respect to TriPath or induce or attempt to induce any other person to initiate any stockholder proposal;
(iv) act, directly or indirectly, alone or in concert with others, to seek to control the management, Board of Directors, policies or affairs of TriPath, or solicit, propose, seek to effect or negotiate with any other person with respect to any securities form of the Companies business combination transaction involving, directly or take indirectly, TriPath or any other action that would interfere of its subsidiaries, or any restructuring, recapitalization or similar transaction with the ability of Sellers respect to vote in accordance with this Agreement;
(g) make any disclosureTriPath, communication, announcement or statement regarding any announce or disclose an intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor TriPath or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is any Voting Securities inconsistent with the provisions of this AgreementSection 4.3;
(hv) effect or seek to effect, offer or propose to effect, cause or participate inencourage any person, or directly or indirectly participate, aid and abet or otherwise induce any person or engage in any way assist of the actions prohibited by this Section 4.3 or facilitate to engage in any other person to effect actions consistent with such prohibitions;
(vi) enter into any discussions, negotiations, arrangements or seek, offer or propose to effect or participate in, understandings with any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal third party with respect to any Extraordinary Transaction of the foregoing;
(vii) other than pursuant to the Collaboration Agreement or this the Product Purchase Agreement that is inconsistent with the provisions or Section 4.1 of this Agreement, including 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 actions reasonably likely to require the Company or FSFR TriPath to make any public disclosure relating to any regarding such intent, purpose, plan, proposal or conditionmatters;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (viiviii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify to amend or waive any provision of this AgreementSection 4.3; or
(ix) disclose any intention, plan or arrangement inconsistent with the foregoing.
4.3.2 For purposes of this Section 4.3, the invitation of TriPath's Board of Directors shall be with the approval of a majority of those individuals who are either: (a) members of TriPath's Board of Directors as of the date hereof (the "Current Directors"); or (b) new members elected after the date hereof by a majority of the Current Directors and any new members previously elected pursuant to this clause (b). The term "affiliate" as used in this Agreement shall have the meaning ascribed to such term in Rule 12b-2 under the Exchange Act, but shall not include directors or officers of Quest Diagnostics acting in their individual capacities.
Appears in 2 contracts
Sources: Warrant Purchase Agreement (Tripath Imaging Inc), Warrant Purchase Agreement (Tripath Imaging Inc)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (Except as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of otherwise provided in this Agreement, none without the prior written consent of the Sellers shallBoard, the Stockholders shall not, and Sellers shall cause instruct their respective controlled Affiliates Representatives not to, directly or indirectlyindirectly (in each case, in any manner, alone or in concert with others:except as permitted by this Agreement):
(a) solicit(i) acquire, offer or 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 Company generally on a pro rata basis), whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Company or any voting rights decoupled from the underlying voting securities; or (ii) knowingly sell, offer or agree to sell, through swap or hedging transactions or otherwise, the voting securities of the Company or any voting rights decoupled from the underlying voting securities held by the Stockholders to any Third Party that would result in such Third Party having any beneficial ownership interest of 5.0% or more of the then-outstanding shares of Common Stock (except for Schedule 13G filers that are mutual funds, pension funds or index funds with no known history of activism);
(b) (i) nominate or recommend for nomination a person for election at any Stockholder Meeting at which the Company’s directors are to be elected; (ii) initiate, knowingly encourage or in any way engage participate in any solicitation ofof proxies in respect of any election contest or removal contest with respect to the Company’s directors; (iii) submit any stockholder proposal for consideration at, or bring any other business before, any proxies Stockholder Meeting; (iv) initiate, knowingly encourage or consents or become a “participant” participate in a “solicitation,” directly or indirectly, 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 proxies in respect of any stockholder proposal for consideration at, or other business brought before, any Stockholder Meeting: (v) knowingly encourage or participate in any request to call a special meeting of the stockholders of the Company; or by encouraging (vi) initiate, knowingly encourage or participating participate in any “withhold” or similar campaign), in each case, campaign with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”any Stockholder Meeting; provided, however, that, except as set forth in Section 2(b) or any securities convertible Section 3, nothing in this Section 5(b) will be interpreted to restrict the Stockholders’ ability to (A) privately recommend candidates for the Board or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(bB) make vote their shares on any proposal for consideration by duly brought before the Company’s stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseas each Stockholder determines in his sole discretion;
(c) knowingly adviseform, encourage, support, instruct join or influence in any person way participate in any group with respect to any voting securities of the matters covered by this Section 3.1 Company in connection with any election or removal contest with respect to the voting Company’s directors (other than with the Stockholders or disposition one or more of their Affiliates to the extent that any securities of such person signs a joinder to this Agreement reasonably acceptable to the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soCompany);
(d) agree, attempt, seek or propose to deposit any voting securities of the Companies Company in any voting trust or similar arrangement, or subject any Company voting securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4other than any such voting trust, arrangement or agreement solely among the Stockholders and one or more of their Affiliates;
(e) knowingly seek publicly, alone or encourage in concert with others, to amend any person to submit nominations in furtherance provision of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s articles of incorporation or FSFR’s investment advisory agreementbylaws;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) demand an inspection of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany’s books and records;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way knowingly assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any (i) acquisition of any securities, or any material assets or businesses, of the Company or any of its subsidiaries; (ii) tender offer or exchange offeroffer (except as specifically contemplated by this Agreement), merger, consolidation, acquisition, scheme, arrangement, share exchange or other business combination, combination involving any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or (iii) recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures any material portion of its or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionbusinesses;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nh) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any Third Party with respect to the foregoing, or advise, finance, assist, encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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 respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oi) take any action challenging the validity or enforceability of this Section 5 or this Agreement, or publicly make or in any way advance publicly any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Settlement Agreement (Surge Components Inc), Settlement Agreement (Tofias Michael D)
Standstill. Effective from Each of the Vivendi Parties, on behalf of itself and its Controlled Affiliates, hereby agrees, that for the period commencing on the date of this Agreement hereof and continuing until ending six months after the later first date on which Vivendi and its Controlled Affiliates, in the aggregate, beneficially own less than 5% of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreementissued and outstanding Common Stock, none of the Sellers shall, and Sellers shall cause Vivendi Parties nor any of their respective controlled Controlled Affiliates not to, directly or indirectlywill, in any manner, alone directly or in concert with others:
indirectly: (a) solicitacquire, offer or propose to acquire, or knowingly encourage agree or in any way engage in any solicitation seek to acquire, or solicit the acquisition of, any proxies by purchase or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 limitationotherwise, any solicitation Common Stock (or beneficial ownership thereof) or rights or options to acquire any Common Stock (or beneficial ownership thereof) or commence any tender or exchange offer for any Common Stock (or beneficial ownership thereof); provided, however, that this clause (a) shall not (i) apply to Common Stock or rights to acquire Common Stock issued by the Company to Vivendi or any of consents that seeks its Controlled Affiliates as a dividend, distribution or otherwise in respect of any Common Stock owned by Vivendi and its Controlled Affiliates immediately after giving effect to the Purchase Transaction or (ii) prohibit Vivendi or any of its Controlled Affiliates from purchasing shares of Common Stock issued by the Company pursuant to any public offering of Common Stock conducted by the Company; (b) call or seek to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence initiate any person with respect to any of the matters covered stockholder proposal for action by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except engage in accordance with Section 3.4, the “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or seek consents to do so;
(d) agree, attempt, seek or propose to deposit vote any voting securities of the Companies in any voting trust Company, including soliciting consents or similar arrangement, or subject any securities of the Companies to any arrangement or agreement taking other action with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance calling of a “contested solicitation” or take other action for the election or removal special meeting of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
stockholders; (fc) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group ” (as defined under Section 13(d) of the Exchange Act (except such participation related and the rules and regulations thereunder) with respect to the reasonable unwinding of any such group currently existing Company or Common Stock (other than to the extent that Vivendi and its Controlled Affiliates constitute a “group” as of the date of this Agreementhereof); (d) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, to seek representation onon or to control or influence the management, board of directors or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or to obtain representation on the investment advisor board of FSFRdirectors of the Company; (e) enter into or agree, offer, propose or seek (vwhether publicly or otherwise) solicit consents from the Company or FSFR stockholders to enter into, or otherwise act be involved in or seek part of, any acquisition transaction, merger or other business combination or similar transaction relating to act by written consent, (vi) conduct a referendum all or part of the Company or FSFR stockholders or (vii) make a request for any stockholders list of its subsidiaries or any other books and records in Sellers’ capacity as a Company acquisition transaction for all or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership part of any securities issued by the assets of the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR subsidiaries or any of their current respective businesses or former directors any recapitalization, restructuring, change in control or officers similar transaction involving the Company or any of its subsidiaries; (including derivative actions)f) request that the Company or the Board amend, other than (i) litigation waive or otherwise consent to enforce the provisions any action inconsistent with any provision of this Agreement and Section 3.3, (iig) counterclaims enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
foregoing activities; (nh) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, act as a financing source for or other otherwise invest in any Third Party to take any action or make any statement other person in connection with any of the foregoing; (i) publicly disclose through its authorized representatives any intention, plan or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
or (oj) expressly take any action challenging initiative with respect to the validity Company which could require the Company to make a public announcement regarding (A) such initiative or enforceability (B) any of the foregoing activities. For purposes of this AgreementSection 3.3, or make or in the term “Common Stock” shall be deemed to include any way advance any request or proposal that other equity securities of the Company. The Company and Games acknowledge and agree that no transfer, FSFRsale or other transaction with respect to the Remaining Shares between Vivendi or any of its Controlled Affiliates, on the Company Board one hand, and Vivendi or any of its Controlled Affiliates, on the FSFR Board amendother hand, modify or waive any provision that is not prohibited under Section 7.4 of the Purchase Agreement shall be prohibited by this AgreementSection 3.3.
Appears in 2 contracts
Sources: Investor Agreement (Activision Blizzard, Inc.), Stock Purchase Agreement (Activision Blizzard, Inc.)
Standstill. Effective (a) The Iroquois Group will not (A) nominate or recommend for nomination any person for election at the 2016 Annual Meeting, directly or indirectly, (B) submit any proposal for consideration at, or bring any other business before, the 2016 Annual Meeting, directly or indirectly, or (C) initiate, encourage or participate in any “vote no,” “withhold” or similar campaign with respect to the 2016 Annual Meeting, directly or indirectly. The Iroquois Group shall not publicly or privately encourage or support any other stockholder to take any of the actions described herein.
(b) The Iroquois Group agrees that, from the date Effective Date of this the Agreement and continuing until the later date that ▇▇. ▇▇▇▇▇▇▇▇▇ is no longer serving as a member of the certification Company’s Board, neither it nor any of votes for the Company 2017 Annual Meeting of Stockholders its affiliates or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallassociates will, and Sellers shall it will cause their respective controlled Affiliates each of its affiliates and associates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)consents, in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Company;
(bii) make form, join or in any proposal for consideration by stockholders at way participate in any annual or special meeting “group” (within the meaning of the stockholders Section 13(d)(3) of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities common stock of the Companies at any annual or special meeting Company, par value $0.0001 per share (the “Common Stock”); provided, however, that nothing shall limit the ability of stockholders an affiliate of the Company or FSFRIroquois Group to join the “group” following the execution of this Agreement, except in accordance with Section 3.4, or seek so long as any such affiliate agrees to do sobe bound by these standstill provisions;
(diii) agree, attempt, seek or propose to deposit any securities of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities of the Companies Common Stock to any arrangement or agreement with respect to the voting thereofof any Common Stock, except other than any such voting trust, arrangement or agreement solely among the members of the Iroquois Group and otherwise in accordance with Section 3.4this Agreement;
(eiv) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFRseek, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies encourage or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board election or removal of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreementany directors;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iiv) seek, alone or in concert with others, representation on, or nominate any candidate to, on the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, ; or
(vi) conduct a referendum of the Company seek to advise, encourage, support or FSFR stockholders or (vii) make a request for influence any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, the voting or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant disposition of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into Company at any negotiations, arrangements, understanding annual or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any special meeting 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementstockholders.
Appears in 2 contracts
Sources: Nomination, Standstill and Voting Agreement (WPCS International Inc), Nomination, Standstill and Voting Agreement (Iroquois Capital Management, LLC)
Standstill. Effective from During the date Standstill Period, the Raging Capital Group, each Member, each Raging Capital Nominee and each of this Agreement and continuing until their respective Affiliates shall not, without the later prior written consent of the certification Company:
(a) own, acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) Beneficial Ownership of votes any Common Stock representing in the aggregate in excess of 22.5% of the shares of Common Stock outstanding at any given time; provided that shares of Common Stock underlying Convertible Notes shall not be deemed to be Beneficially Owned, regardless of the ability of the holders thereof to convert such Convertible Notes into Common Stock at any given time, for purposes of calculating this ownership limitation unless and until such Convertible Notes are actually converted into Common Stock pursuant to the Company 2017 Annual Meeting terms thereof, or (ii) Beneficial Ownership of Stockholders any Senior Notes, Convertible Notes or any other interests in the certification Company’s indebtedness such that the aggregate principal amount of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except all such indebtedness exceeds $40,000,000; provided that nothing herein will require Common Stock to be sold to the extent expressly permitted by the terms ownership limit in subparagraph (i) is exceeded solely as the result of this Agreementa share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(b) make, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toor in any way participate, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” to vote (as such terms are defined used in Regulation 14A under the Securities Exchange Act rules of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignSEC), in each case, with respect or seek to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct advise or influence any person with respect to the voting of, any Voting Stock of the Company (other than in a Raging Capital Nominee’s capacity as a member of the Board in a manner consistent with the Board’s recommendation in connection with such matter);
(c) separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent, submit a recommendation of, proposal for or offer of (with or without conditions) (including to the Board) any Extraordinary Transaction, except confidentially in a manner that would not be reasonably likely to require public disclosure. “Extraordinary Transaction” means any of the matters covered by this Section 3.1 following involving the Company or with respect to the voting any of its Subsidiaries or disposition of any its or their securities or a material amount of the Companies at any annual assets or special meeting of stockholders businesses of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) 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, its Subsidiaries: any tender offer or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, reorganization, restructuring, recapitalization, reorganization, sale or acquisition of material assets, liquidation, liquidation or dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Settlement Agreement (Castle a M & Co), Settlement Agreement (Raging Capital Management, LLC)
Standstill. Effective from From the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Expiration Date (as defined below) 2017 Annual Meeting of Stockholders (such period, the “Standstill Restricted Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallInvestors will not, and Sellers shall will cause their respective controlled Affiliates principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (collectively, the “Restricted Persons”) not to, directly or indirectly, in any manner, alone absent prior express written invitation or in concert with othersauthorization by the Company or the Board:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors or any other matter or proposal or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
(b) knowingly encourage, advise or influence any other Person or knowingly assist any Person in so encouraging, advising or influencing any Person with respect to the Company giving or FSFRwithholding of any proxy, including consent or other authority to vote or in conducting any action type of referendum, binding or non-binding, (other than such encouragement, advice or influence that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the consistent with Company or FSFR, or a modification to the terms or conditions of either the Companymanagement’s or FSFR’s investment advisory agreementrecommendation in connection with such matter);
(fc) form, join or act in or in concert with any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, including a group “group” as defined under pursuant to Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies Voting Securities, other than solely with another Investor with respect to Voting Securities now or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreementhereafter owned by them;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(id) (i) call seek, alone or seek in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to call or request the calling of any meeting of stockholders at either the Company or FSFRBoard, including by written consentexcept as set forth herein, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (viiii) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderstockholders;
(je) purchase make or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership the proponent of any securities issued by stockholder proposal (pursuant to Rule 14a-8 under the Company Exchange Act or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFRotherwise);
(kf) sellexcept as set forth herein, offer make any public proposal with respect to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”i) any securities issued by change in the Company and/or number or term of directors or the filling of any securities convertible into vacancies on the Board, (ii) any material change in the capitalization or exchangeable for securities issued by dividend policy of the Company, unless (iii) any Buyer fails other material change in the Company’s management, business or corporate structure, (iv) any waiver, amendment or modification to timely perform each the Company’s Certificate of its obligations under Incorporation or Bylaws, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i12(g)(4) of this Agreementthe Exchange Act;
(lg) institute, solicit solicit, assist or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, join any litigation, arbitration or other proceeding against or involving the Company or FSFR or any of their its current or former directors or officers (including derivative actions)) in order to effect or take any of the actions expressly prohibited by this paragraph 6; provided, other than however, that for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (i) bringing litigation to enforce the provisions of this Agreement and Agreement, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a party Restricted Person, (iii) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement Agreement, or FSFR against Sellers(iv) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nh) enter into any negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any Third Party, or advise, finance, assist, seek to knowingly persuade otherwise encouraging or encourage, facilitating any Third Party Party, in each case to take any action or make any statement in connection with any of that the foregoing, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes Investor is prohibited from taking pursuant to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingthis paragraph 6; or
(oi) take make any action challenging request or submit any proposal, directly or indirectly, to amend or waive the validity or enforceability terms of this Agreement, or make or in any way advance any each case which would reasonably be expected to result in a public announcement of such request or proposal that proposal. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall prohibit or restrict the New Director from exercising his rights and fiduciary duties as a director of the Company or restrict his discussions solely among other members of the Board and/or management, advisors, representatives or agents of the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Director Appointment Agreement (Cannell Capital LLC), Director Appointment Agreement (Destination Xl Group, Inc.)
Standstill. Effective from (a) The Investor covenants and agrees that, during the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallit shall not, and Sellers it shall cause their respective controlled its Affiliates not to, in any manner, directly or indirectly, in any manner, alone or in concert with othersany other Person:
(ai) solicitpropose or seek to effect any Change of Control Transaction, including by entering into a support agreement or lock-up agreement in respect of such a transaction, provided that for greater certainty, the Investor and its Affiliates shall be permitted to tender to, vote in favour of, and/or enter into a support agreement or lock-up agreement in respect of a Change of Control Transaction supported by a majority of the Board;
(ii) solicit proxies from Shareholders or form, join, support or participate in a group to solicit proxies from Shareholders with a view to replacing the members of the Board;
(iii) purchase, offer or agree to purchase or negotiate to purchase any Securities that would cause the Ownership Percentage to exceed 45%, or knowingly assets of the Corporation, without the advance written authorization of the Board;
(iv) advise or encourage or in any way engage in Person proposing any solicitation of, any proxies or consents or become of the foregoing (including forming a “participantgroup” with any such Person); or
(v) make any public announcement or take any action in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities furtherance of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);foregoing.
(b) Notwithstanding Section 3.1(a) and in accordance with Applicable Law, the Investor and its Affiliates shall not be restricted from:
(i) acquiring Securities with the prior written consent of the Corporation;
(ii) making a confidential proposal to the Board regarding any of the transactions or activities contemplated in Section 3.1(a), entering into discussions or negotiations with the Board or the Corporation with respect to the terms of any such proposal, and entering into any agreement with the Corporation providing for the consummation of such proposal; provided that the Investor shall not make any proposal for consideration by stockholders at any annual or special meeting public disclosure of the stockholders making of or terms of such proposal except with the prior written consent of the Company Corporation, such consent not to be unreasonably withheld;
(iii) acquiring Securities upon exercise, exchange or FSFRconversion of any Subject Securities in accordance with their respective terms;
(iv) acquiring Securities in accordance with the terms of the Participation Rights set forth in Section 5.1;
(v) participating in rights offerings conducted by the Corporation;
(vi) receiving stock dividends or similar distributions made by the Corporation;
(vii) provided that the Investor has not breached Section 3.1(a), whether pursuant tendering Shares to Rule 14a-8 under a formal take-over bid for the Exchange ActShares or any similar transaction by an arm’s length third party; or
(viii) disposing of Shares by operation of a statutory amalgamation, either such company’s constituent documents merger, arrangement, business combination or otherwise;other statutory procedure involving the Corporation or the Shares.
(c) knowingly advise, encourage, support, instruct Section 3.1(a) shall cease to be of any force or influence any person with respect to any effect as of the matters covered by this Section 3.1 public announcement or with respect public disclosure of (A) commencement of a Credible Bid, or an intention to the undertake a Credible Bid, for voting or disposition of any equity securities of the Companies at Corporation or any annual of its Affiliates, (B) any agreement, arrangement or special meeting understanding in respect of stockholders a merger, amalgamation, arrangement, asset purchase or other business combination transaction involving the Corporation or any of the Company or FSFR, except in accordance with Section 3.4its Affiliates, or seek an intention to do so;
make an offer to the Corporation or any of its Affiliates to undertake such a transaction, which would, if completed, result in (dx) agree, attempt, seek or propose to deposit any class of outstanding voting securities of the Companies Corporation being converted into cash or securities of another Person resulting in shareholders (excluding, for the avoidance of doubt, any shareholder who is acquiring voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to Corporation as part of the transaction) holding less than 50% of the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies resulting or take surviving entity, or (y) all or substantially all of the Corporation’s assets being sold to any person or group (other action that would interfere than the Investor), (C) the commencement of any proceeding by or against the Corporation in connection with the ability dissolution, liquidation, winding up, bankruptcy or similar reorganization of Sellers to vote in accordance with this Agreement;
the Corporation, (gD) make the appointment of a trustee, receiver, manager or other administrator of the Corporation or any disclosureof its material properties or assets, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to (E) the FSC Board of Directors Corporation seeking protection under the Bankruptcy and Insolvency Act (the “Company Board”Canada), the Company investment advisor Companies’ Creditors Arrangement Act (Canada) or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementlegislation.
Appears in 2 contracts
Sources: Investor Rights Agreement (Bunker Hill Mining Corp.), Investor Rights Agreement (Bunker Hill Mining Corp.)
Standstill. Effective from the date of this Agreement and continuing until the later (a) Each member of the certification Potomac Group agrees that, during the Covered Period (unless specifically requested in writing by the Company, acting through a resolution of votes for a majority of the Company 2017 Annual Meeting Company’s directors not including the Potomac Designees), it shall not, and shall cause each of Stockholders its Affiliates or the certification of votes for the FSFR Associates (as such terms are defined belowin Rule 12b-2 promulgated by the SEC under the Exchange Act) 2017 Annual Meeting of Stockholders (collectively and individually, the “Standstill PeriodPotomac Affiliates”), ) not to (except to the extent as expressly permitted by the terms of set forth in this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to), directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” of proxies (as such terms are defined used in Regulation 14A under the Securities Exchange Act proxy rules of 1934, as amended (the “SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act”) of proxies or consents (includingto vote, without limitationor seek to advise, encourage or influence any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, person with respect to the voting of any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the CompaniesCompany”);
) 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 (bas such terms are defined or used under the Exchange Act) make any proposal for consideration by stockholders (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any annual stockholder meeting) or special meeting make or be the proponent of the stockholders of the Company or FSFR, whether any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents Act or otherwise);
(cii) knowingly adviseform, join, encourage, supportinfluence, instruct advise or influence in any person way participate in any Group (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons who are not Potomac Affiliates with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise in accordance with Section 3.4, or seek to do so;
(d) any manner agree, attempt, seek or propose to deposit any securities of the Companies Company in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single “person” under Section 13(d) of the Exchange Act 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 Potomac Group (except together with the Potomac Affiliates) owning, controlling or otherwise having any beneficial or other ownership interest in more than 10% in the aggregate of the shares of Common Stock outstanding at such participation related time; provided that nothing herein will require Common Stock to be sold to the reasonable unwinding extent the Potomac Group and the Potomac Affiliates, collectively, exceed the ownership limit under this paragraph as the result of a share repurchase or similar Company actions that reduces the number of outstanding shares of Common Stock;
(iv) sell, transfer, offer or agree to sell or transfer directly or indirectly, through swap or hedging transactions (including any such group currently existing as cash settled position), the securities of the date Company or any rights decoupled from the underlying securities of this Agreementthe Company held by the Potomac Group or any Potomac Affiliate;
(v) with sell, transfer, offer or agree to sell or transfer directly or indirectly, the securities of the Company to any person who is or entity not identified on Schedule I hereto a Potomac Affiliate (any such person, a “Third Party”), with respect that would, to the knowledge of any securities member of the Companies Potomac Group after reasonable inquiry, result in such Third Party, together with its affiliates and associates, owning, controlling or take otherwise having any beneficial or other action that would interfere ownership interest in the aggregate of five percent (5%) or more of the shares of Common Stock outstanding at such time or increasing a Third Party’s beneficial or other ownership interest if such Third Party’s beneficial or other ownership interest is already five percent (5%) or more of the shares of Common Stock outstanding at such time, except in a transaction approved by the Board, other than through an open-market purchase and sale transaction with a counterparty anonymous to the ability of Sellers to vote in accordance with this AgreementPotomac Group and its representatives;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hvi) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the Potomac Group or disclosure regarding a Potomac Affiliate of any intent, purpose, plan securities of the Company into any tender or proposal exchange offer or vote with respect to any Extraordinary Transaction or this Agreement that is inconsistent with approved by 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionBoard;
(ivii) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any hedging, put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index);
(viii) (iA) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFRstockholders, including by written consent, (iiB) seekseek representation, alone or in concert with others, representation on, on or nominate any candidate to, the Company Board or the FSFR Board, except as set forth herein, (iiiC) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (vD) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (viE) conduct a referendum of the Company or FSFR stockholders stockholders, or (viiF) make a request for any stockholders stockholder list or any other Company books and records in Sellers’ capacity as a Company records, whether pursuant to Section 220 of the DGCL or FSFR stockholderotherwise;
(jix) purchase take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors, the removal of any directors, or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(x) in any way disparage (or cause to be purchased disparaged), attempt to discredit, make derogatory statements with respect to, or otherwise acquire or agree to acquire beneficial ownership of any securities issued by call into disrepute, the Company or FSFRthe Company’s subsidiaries, affiliates, successors, assigns, officers (including any current, future or former officer of the Company or the Company’s subsidiaries), directors (including any current, future or former director of the Company or the Company’s subsidiaries), employees, stockholders, agents, attorneys or representatives, or any securities convertible into of the Company’s or exchangeable for securities issued by the Company Company’s subsidiaries’ practices, procedures, business operations, products or FSFRservices, in any manner;
(kxi) sellmake any public disclosure, offer announcement or statement regarding any intent, purpose, plan or proposal with respect to sellthe Board, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless its management, policies or affairs, any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nxii) enter into any negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any Third Party with respect to any of the foregoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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 respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oxiii) take publicly request, directly or indirectly, any action challenging amendment or waiver of the validity or enforceability foregoing. The foregoing provisions of this AgreementSection 2(a) shall not be deemed to prohibit the Potomac Group or its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each member of the Potomac Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or make or in by any way advance any request or proposal that Potomac Affiliate, to be present for quorum purposes and to be voted, at the Company’s annual and special stockholder meetings and at any adjournments or postponements thereof, FSFR, and further agrees that at the 2014 annual stockholder meeting they shall vote in favor of (i) all directors nominated by the Board for election at such meeting (including the Potomac Designees as applicable) and (ii) in accordance with the Board’s recommendation with respect to any proposal regarding the ratification of the Company’s current independent registered public accounting firm.
(c) Nothing in this Section 2 shall limit any actions that may be taken by a Potomac Designee acting solely in such Potomac Designee’s capacity as a director of the Company Board or consistent with such Potomac Designee’s fiduciary duties as a director of the FSFR Board amend, modify or waive any provision Company and such Potomac Designee’s obligations and representations under the other Sections of this Agreement.
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Potomac Capital Partners Iii, L.P.), Nomination and Standstill Agreement (Meru Networks Inc)
Standstill. Effective from 19. Each of the Parties hereto agree that, until the date immediately following the annual general meeting of this Agreement and continuing until the later shareholders of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)held in 2022, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates it will not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in vote any way engage in Subject Securities and any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to other voting securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of acquired after the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate date hereof in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is manner inconsistent with the provisions of this Agreement;
(hb) effect either alone or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate with 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 shareholders of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR requisition a meeting of the shareholders of the Company for the purpose of replacing the board of directors of the Company or either of their investment advisors, or for any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is other purpose inconsistent with the provisions of this Agreement, including ;
(c) make or in any intent, purpose, plan or proposal that is conditioned onway participate in any solicitation of proxies to vote, or would require waiver, amendment, nullification seek to advise or invalidation influence any other person with respect to the voting of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member securities of the Company Board or inconsistent with the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) provisions of this Agreement;
(ld) instituteotherwise act alone or in concert with others to seek to control the management, solicit board of directors or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against corporate policies of the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce except in accordance with the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against SellersAgreement;
(me) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities except as may be permitted under the terms of the CompaniesAmended Investment Transaction Documents, otherwise act alone or in concert with others to seek to provide financing, or support any effort by a third party to provide financing, whether debt or equity, to the Company;
(nf) enter into take any negotiations, arrangements, understanding or agreements (whether written or oral) steps to interfere with, challenge the legality, enforceability or advise, finance, assist, otherwise seek to knowingly persuade undo or encourage, any Third Party to take any action or make any statement in connection with unwind any of the foregoingAmended Investment Transaction Documents or the CVR Holders’ rights thereunder, or make the waivers set forth herein;
(g) take any investment in or enter into any arrangement steps to interfere with any other person that engages, or offers or proposes to engage, the Company’s prosecution of its Arbitration Claim;
(h) participate in any transaction for the acquisition of all or a material portion of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any assets of the foregoingCompany, including the Arbitration Claim;
(i) take any steps to change current arbitration counsel to the Company, except upon unanimous approval of the Elected Directors; or
(oj) take publicly announce an intention to do any action challenging of the validity things referred to in this Section 19. Notwithstanding any other provision herein, nothing in this Section 19 shall prevent a Party, if that Party is a director or enforceability officer of this Agreement, or make or in any way advance any request or proposal that the Company, FSFRand solely in his or her capacity as such director or officer, from acting in accordance with the exercise of his or her fiduciary duties to act in the best interests of the Company Board or from taking any action if such action should be taken to properly discharge his or her fiduciary duty as a director and/or officer of the FSFR Board amend, modify or waive any provision of this AgreementCompany.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
Standstill. Effective from (a) Each Purchaser covenants to and agrees with the Company that, without the Company’s prior written consent, neither such Purchaser nor any of its Affiliates will, directly or indirectly until the date of this Agreement and continuing until that is twelve (12) months after the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Closing Date (the “Standstill Period”)):
(i) in any way acquire, except offer or propose to acquire or agree to acquire legal title to or Beneficial Ownership of any Company Securities;
(ii) make any public announcement with respect to, or submit to the extent expressly permitted Company or any of its directors, officers, representatives, trustees, employees, attorneys, advisors, agents or Affiliates, any proposal for the acquisition of any Company Securities or with respect to any merger, consolidation, business combination, restructuring, recapitalization or purchase of any substantial portion of the assets of the Company of any of its Subsidiaries, in which such Purchaser and its Affiliates are involved, and whether or not such proposal might require the making of a public announcement by the terms Company unless the Company shall have made a prior written request to such Purchaser to submit such a proposal;
(iii) seek or propose to influence, advise, change or control the management, the board of this Agreement, none directors of the Sellers shallCompany, and Sellers shall cause their respective controlled Affiliates not to, directly governing instruments or indirectly, in policies or affairs of the Company by way of any manner, alone public communication or in concert communication with others:
(a) solicitany Person other than the Company, or knowingly encourage make, or in any way engage in any solicitation ofparticipate in, any proxies “solicitation” of “proxies” (as such terms are defined or consents used in Regulation 14A under the Exchange Act) to vote any Company Securities or become a “participant” in a any “solicitation,election contest” directly or indirectly, as such terms are defined and used in Rule 14a-11 under the Exchange Act) with respect to Company Securities; provided, however, that nothing in this clause (iii) shall prevent such Purchaser or its Affiliates from (x) voting in any manner any Company Securities over which such Purchaser or such Affiliates has Beneficial Ownership or (y) communicating privately with shareholders of the Company to the extent such communication does not constitute a “solicitation” of “proxies,” as such terms are defined or used in Regulation 14A under the Securities Exchange Act and the number of 1934, as amended persons with whom such Purchaser communicates is fewer than ten (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign10), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);; or
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify amend or waive any provision of this Section 5.12(a). Notwithstanding the above provisions under this Section 5.12, with respect to each case under items (i) — (iii) above, if at any time the Company issues any Company Securities (except for any Company Securities issued or granted pursuant to the employee share incentive plan of the Company existing as of the date hereof (but such exception shall not apply to any future amendments which may be made to such plan)) or sells any treasury ADSs, each Purchaser shall have the right to acquire such number of Company Securities in order to maintain the same percentage ownership it owns in the Company prior to such issuance or sale of such Company Securities or treasury ADSs (as applicable) (on a fully diluted and as converted basis as defined in the Exhibit C).
(b) For purposes of this Agreement, a Person shall be deemed to have “Beneficial Ownership” of any securities in respect of which such Person or any such Person’s Affiliates is considered to be a “Beneficial Owner” under Rule 13d-3 under the Exchange Act as in effect on the date hereof.
Appears in 2 contracts
Sources: Subscription Agreement (Bitauto Holdings LTD), Subscription Agreement (JD.com, Inc.)
Standstill. Effective from the date of this Agreement and continuing You agree that, for a period until the later earlier of (i) a public announcement of any tender or exchange offer, merger or other business combination involving the Company, any of the certification subsidiaries or assets of votes for the Company 2017 Annual Meeting of Stockholders or the certification subsidiaries constituting a significant portion of votes for the FSFR consolidated assets of the Company and its subsidiaries (a "Sale Transaction"), (ii) September 21, 2007, (iii) such date as the Investor (as such term is defined belowin the SPA) 2017 Annual Meeting or its affiliates do not own 50% of Stockholders the shares purchased in the Stock Purchase Agreement, dated February 15, 2006, by and among the Company, Tinicum Capital Partners, L.P., Tinicum Capital Partners Parallel Fund II, L.P. and Tinicum Inc. (the “Standstill Period”"SPA"), except to or (iv) the extent expressly permitted Board of Directors waives the restrictions in this paragraph 7, unless specifically invited in writing by the terms Company, neither you nor any of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toyour affiliates or Representatives will in any manner, directly or indirectly, in any manner, alone or in concert with others:
: (a) solicitassist, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek facilitate or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) 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 (whether publicly or otherwise) to effect or participate in, in (x) any tender Sale Transaction or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, (y) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its subsidiaries, it being understood that the foregoing shall not prohibit you or joint ventures your affiliates from effecting or participating in such transaction, (b) engage in any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company; (c) form, join or in any way participate in a "group" (as defined under the ▇▇▇▇ ▇▇▇) with unaffiliated third parties with respect to the Company or otherwise act in concert with any person in respect of any such securities; (d) other than by requesting to the Board of Directors of the Company to waive any of their respective securities (eachthe provisions of this Section, an “Extraordinary Transaction”), take any action which would or would reasonably be expected to force the Company to make any statement or disclosure a public announcement regarding any intent, purpose, plan of the types of matters set forth in (a) above; or proposal (e) enter into any discussions or arrangements with any third party (other than your representatives and any financing sources) with respect to any Extraordinary Transaction of the foregoing. The Company agrees that during such period you may request that the Company or this Agreement that is inconsistent with the any of its Representatives, directly or indirectly, amend or waive any provisions of this Agreement, including paragraph. Nothing in this paragraph 7 shall prohibit or be construed to prohibit the Investor from making any intent, purpose, plan or proposal that filings with the Securities and Exchange Commission which the Investor reasonably determines it 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 or FSFR required to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementmake.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Transtechnology Corp), Stock Purchase Agreement (Tinicum Capital Partners Ii Lp)
Standstill. Effective Without PCM’s or Systemax’s consent, as applicable, PCM and Systemax shall not, and shall cause their respective “affiliates” (as defined in Rule 12b-2 under the Exchange Act) not to, for a period of five years from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders Agreement: (i) purchase or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicitotherwise acquire, or knowingly encourage offer, seek, propose or in any way engage in any solicitation ofagree to acquire, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents ownership (including, without limitationbut not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company PCM or Fifth Street Senior Floating Rate Corp. (“FSFR”) Systemax, as applicable, or any direct or indirect rights or options to acquire any such securities or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the CompaniesSecurities”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, ; (ii) seekseek or propose, alone or in concert with others, representation onto control or influence in any manner the management, the board of directors or nominate any candidate the policies of PCM or Systemax, as applicable, including, but not limited to, the Company Board or the FSFR Board, a proposal pursuant to Rule 14a-8; (iii) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the proxy rules under the Exchange Act and the regulations thereunder) to vote, or seek to advise or influence any person with respect to the removal voting of any member voting securities of the Company Board other party or the FSFR Board, any of its subsidiaries; (iv) seekform, alone join, or in concert with others, or support any Third Party way participate in seeking, to replace a “group” (within the investment advisor meaning of Section 13(d)(3) of the Company or the investment advisor of FSFR, Exchange Act); (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list proposal or any other books and records in Sellers’ capacity statement regarding any proposal, whether written or oral, to the board of directors of PCM or Systemax, as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRapplicable, or any securities convertible into director or exchangeable for securities issued by the Company officer of PCM or FSFR;
(k) sellSystemax, offer to sellas applicable, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer make any public announcement or dispose proposal whatsoever with respect to any other transaction or proposed transaction between the parties, any of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into PCM’s or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or joinSystemax’s security holders, as a partyapplicable, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions)respective affiliates, other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put acquisition, tender or call option exchange offer, merger, sale of assets or swap transactionsecurities, or other business combination, unless (a) the PCM’s or Systemax’s board of directors, as applicable, or their respective designated Representatives shall have requested in advance the submission of such proposal, (b) such proposal is directed to PCM’s or Systemax’s board of directors, as applicable, or their respective designated Representatives, and (c) any public announcement with respect to such proposal is approved in advance by PCM’s or having any measurement relating Systemax’s board of directors, as applicable; or (vi) providing financing (including guarantees), in whole or in part, to any securities of person with respect to the Companies;
matters in clauses (ni)-(v) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementabove.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Systemax Inc), Asset Purchase Agreement (Pcm, Inc.)
Standstill. Effective (a) Each member of the ValueAct Group agrees that, during the Covered Period, (unless specifically requested in writing by the Company, acting through a resolution of a majority of the Company’s directors not including the ValueAct Designee), it shall not, and shall cause each of its Affiliates or Associates (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) (collectively and individually, the “ValueAct Affiliates,” provided that no portfolio company of the ValueAct Group shall be deemed a “ValueAct Affiliate” so long as such portfolio company (A) has not discussed the Company or its business with the ValueAct Group or the ValueAct Designee, (B) has not received from the date of this Agreement ValueAct Group or the ValueAct Designee information concerning the Company or its business, and continuing until (C) is not acting at the later request of, in coordination with or on behalf of the certification of votes for the Company 2017 Annual Meeting of Stockholders ValueAct Group or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”ValueAct Designee), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” of proxies (as such terms are defined used in Regulation 14A under the Securities Exchange Act proxy rules of 1934, as amended (the “SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act”) of proxies or consents (includingto vote, without limitationor seek to advise, encourage or influence any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, person with respect to the voting of any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the CompaniesCompany”);
) 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 (bas such terms are defined or used under the Exchange Act) make any proposal for consideration by stockholders (other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any annual stockholder meeting) or special meeting make or be the proponent of the stockholders of the Company or FSFR, whether any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents Act or otherwise);
(cii) knowingly adviseform, join, encourage, supportinfluence, instruct advise or influence in any person way participate in any Group (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons who are not ValueAct Affiliates with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise in accordance with Section 3.4, or seek to do so;
(d) any manner agree, attempt, seek or propose to deposit any securities of the Companies Company in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in accordance with Section 3.4this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single “person” under Section 13(d) of the Exchange Act 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 ValueAct Group (except together with the ValueAct Affiliates) owning, controlling or otherwise having any beneficial or other ownership interest in more than 13.75% in the aggregate of the shares of Common Stock outstanding at such participation related time; provided, that, nothing herein will require Common Stock to be sold to the reasonable unwinding extent the ValueAct Group and the ValueAct Affiliates, collectively, exceed the ownership limit under this paragraph as the result of any such group currently existing as a share repurchase or similar Company actions that reduces the number of outstanding shares of Common Stock;
(iv) sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, the securities of the date Company or any rights decoupled from the underlying securities of the Company held by the ValueAct Group or any ValueAct Affiliate to any person or entity not a (A) party to this Agreement, (B) with member of the Board, (C) officer of the Company or (D) ValueAct Affiliate (any person who is or entity not identified on Schedule I hereto set forth in clauses (any such person, A)-(D) shall be referred to as a “Third Party”), that would knowingly result in such Third Party, together with respect to its affiliates and associates, owning, controlling or otherwise having any securities beneficial or other ownership interest in more than 9.9% in the aggregate of the Companies or take any other action that would interfere with shares of Common Stock outstanding at such time, except in a transaction approved by the ability of Sellers to vote in accordance with this AgreementBoard;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of material assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the ValueAct Group or disclosure regarding a ValueAct Affiliate of any intent, purpose, plan securities of the Company into any tender or proposal exchange offer or vote by the ValueAct Group or a ValueAct Affiliate of any securities of the Company with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionTransaction;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or any purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap “swap” transaction) with respect to any security (other than a broad-based market basket or having index) that includes, relates to or derives any measurement relating to any significant part of its value from a decline in the market price or value of the securities of the CompaniesCompany;
(nvii) (A) call or seek to call any meeting of stockholders, including by written consent, (B) seek representation, on or nominate any candidate to, the Board, except as set forth herein, (C) seek the removal of any member of the Board, (D) solicit consents from stockholders or otherwise act or seek to act by written consent, (E) conduct a referendum of stockholders, or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(viii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Restated Certificate of Incorporation or Second Amended and Restated By-Laws or other actions that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) disparage or cause to be disparaged the Company or affiliates thereof or any of its current or former officers or directors;
(x) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company, its management, policies or affairs or any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xi) enter into any discussions negotiations, arrangementsagreements, understanding or agreements (whether written or oral) withunderstandings with any Third Party with respect to any of the foregoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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 respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oxii) take request, directly or indirectly, any action challenging amendment or waiver of the validity or enforceability foregoing. The foregoing provisions of this AgreementSection 2(a) shall not be deemed to prohibit the ValueAct Group or its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(b) Each member of the ValueAct Group shall cause all shares of Common Stock beneficially owned, directly or indirectly, by it, or make by any ValueAct Affiliate, to be present for quorum purposes and to be voted, at the Company’s 2013 annual and special stockholder meeting and at any adjournments or postponements thereof, and further agrees that at the 2013 annual stockholder meeting they shall vote in favor of (i) all directors nominated by the Board for election at such meetings (including the ValueAct Designee as applicable) and (ii) in accordance with the Board’s recommendation with respect to any way advance proposals that may be the subject of stockholder action at such meetings; provided, however, that with respect to a proposal related to an Extraordinary Transaction, the ValueAct Group and the ValueAct Affiliates may vote their shares of Common Stock beneficially owned, directly or indirectly, in the discretion of the ValueAct Group or the ValueAct Affiliate, as applicable.
(c) Nothing in this Section 2 shall limit any request or proposal actions that may be taken by the ValueAct Designee acting solely as a director of the Company consistent with his fiduciary duties as a director of the Company (it being understood and agreed that the Company, FSFR, ValueAct Group and the Company Board ValueAct Affiliates shall not seek to do indirectly through the ValueAct Designee anything that would be prohibited if done by the ValueAct Group or the FSFR Board amend, modify or waive any provision of this AgreementValueAct Affiliates).
Appears in 2 contracts
Sources: Nomination and Standstill Agreement, Nomination and Standstill Agreement (Cbre Group, Inc.)
Standstill. Effective from (a) Each TPG Stockholder agrees that, until the earlier of the three (3) year anniversary of the date hereof or the date on which such TPG Stockholder does not Beneficially Own any shares of this Agreement and continuing until Company Common Stock, without the later prior written consent of at least a majority of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Board, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallsuch TPG Stockholder shall not, and Sellers shall cause their respective its controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitacquire, agree to acquire, propose or offer to acquire, or knowingly encourage or in any way engage in any solicitation facilitate the acquisition of, any proxies shares of Company Common Stock (other than acquisitions involving no more than three percent (3%) of the fully-diluted voting power of the shares of Company Common Stock in the aggregate), other than as a result of any stock split, stock dividend or consents subdivision of the shares of Company Common Stock or become in connection with any of the transactions contemplated by the Merger Agreement;
(ii) deposit any shares of Company Common Stock into a “participant” voting trust or similar contract or subject any shares of Company Common Stock to any voting agreement, pooling arrangement or similar arrangement or other contract, or grant any proxy with respect to any shares of Company Common Stock, in a each case, other than any such voting trust, voting agreement, pooling arrangement or other contract, solely among the TPG Stockholders;
(iii) other than in connection with any matter recommended by the Board, enter, agree to enter or propose or offer to enter into any merger, business combination, recapitalization, restructuring, change in control transaction or other similar extraordinary transaction involving the Company or any of its subsidiaries or an acquisition of 10% or more of the assets of the Company and its subsidiaries;
(iv) other than in connection with any matter recommended by the Board, make or participate or engage in (subject to Section 5.1(b)), any “solicitation,” directly or indirectly, of “proxies” (as such terms are defined in under Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) to vote any shares of Company Common Stock, disregarding clause (iv) of proxies or consents (including, without limitation, Rule 14a-1(l)(2) and including any otherwise exempt solicitation of consents that seeks pursuant to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”Rule 14a-2(b);
(bv) make publicly disclose any proposal for consideration by stockholders at any annual intention, plan, arrangement or special meeting of other contract prohibited by, or inconsistent with, the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseforegoing;
(cvi) advise or knowingly advise, encourage, support, instruct assist or influence knowingly encourage or enter into any person negotiations or agreements or other contracts with any other persons in connection with the foregoing;
(vii) with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFRforegoing, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fA) form, join in or in any way participate in (subject to Section 5.1(b)) a partnership, limited partnership, syndicate or other “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to and the reasonable unwinding of any such group currently existing as of the date of this Agreementrules and regulations thereunder) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities common stock; (B) call, or seek to call, a meeting of the Companies Stockholders of the Company or initiate any Stockholder proposal for action by Stockholders of the Company with respect to any of the foregoing or (C) directly or indirectly, take any other action that would interfere with reasonably be expected to require the ability Company to make a public announcement regarding the possibility of Sellers to vote a business combination, merger, sale of assets or other type of transaction or matter described in accordance with this AgreementSection 5.1;
(gviii) make present at any disclosure, communication, announcement annual meeting or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions special meeting of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor Stockholders or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer through action by written consent any proposal for consideration for action by Stockholders or propose any nominee for election to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or of Directors, in each case, subject to the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor rights of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek TPG Stockholders pursuant to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing2.2; or
(oix) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amendany of its representatives, modify directly or indirectly, to amend or waive any provision of this Section 5.1; provided that the TPG Stockholders may confidentially request the Company to amend or waive any provision of this Section 5.1 in a manner that would not be reasonably likely to require public disclosure by the Company or such TPG Stockholders.
(b) Notwithstanding the foregoing provisions of this Section 5.1, the foregoing provisions shall not, and are not intended to:
(i) prohibit any TPG Stockholder or any of its controlled Affiliates from privately communicating with, including making any offer or proposal to, the Board;
(ii) restrict in any manner how any TPG Stockholder or any of its controlled Affiliates votes their shares of Company Common Stock;
(iii) restrict the manner in which any TPG Director may (A) vote on any matter submitted to the Board or the Stockholders of the Company, (B) participate in deliberations or discussions of the Board (including making suggestions or raising issues to the Board) in his or her capacity as a member of the Board or (C) take actions required by his or her exercise of legal duties and obligations as a member of the Board or refrain from taking any action prohibited by his or her legal duties and obligations as a member of the Board; or
(iv) restrict any TPG Stockholder or any of its Permitted Transferees from Transferring any Subject Shares to any Permitted Transferees of such TPG Stockholder or any successor of such TPG Stockholder that, in any such case, agrees to be bound by the provisions contained in this Agreement.
(c) Nothing set forth in this Section 5.1 shall prohibit, restrict or otherwise limit the ability of any TPG Stockholder or any Affiliate of any TPG Stockholder from engaging in any hedging and derivative transactions if such transactions are with one or more counterparties that are nationally recognized reputable banking organizations, solely to the extent such transactions do not have the intention or purpose of circumventing the transfer restrictions contained in this Agreement.
Appears in 2 contracts
Sources: Stockholder Rights Agreement (Assurant Inc), Stockholder Rights Agreement (Assurant Inc)
Standstill. Effective from Each member of the date of this Agreement and continuing Kanen Group agrees that until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Termination Date, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallit shall not, and Sellers shall cause their respective controlled its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
and Associates (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies and its and their respective principals, directors, general partners, members, officers, employees, and agents and representatives acting on their behalf (collectively, the “Kanen Affiliates”) not to, directly or consents (includingindirectly, without limitationthe prior express written invitation or authorization by the Board:
(a) make, engage in or in any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating way participate in any “withholdsolicitation” or similar campaign(as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”), but without regard to the exclusion set forth in each caseRule 14a-1(1)(2)(iv) under the Exchange Act) of proxies, consents or voting authorizations with respect to securities the election or removal of directors of the Company or Fifth Street Senior Floating Rate Corp. any other matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, or become a “participant” (“FSFR”as such term is used in the proxy rules of the SEC) or assist any securities convertible or exchangeable into or exercisable for “participant” in any such securities (collectivelysolicitation of proxies, “securities of consents or voting authorizations from the Companies”)Company’s stockholders;
(b) encourage, influence, induce or advise or assist any Person in so encouraging, influencing, inducing or advising any Person with respect to the giving, revocation or withholding of any proxy, consent or other authorization to vote any shares of Common Stock (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board in connection with any matter submitted to the Company’s stockholders for their consideration and vote);
(c) form, join, encourage, influence, advise, act in concert with or in any way participate in any “group” (as defined pursuant to Section 13(d) of the Exchange Act), with respect to any Voting Securities (as defined below), other than solely with controlled Kanen Affiliates with respect to Voting Securities now or hereafter owned by them;
(d) (i) engage in, or become a party or counterparty to, any swap or hedging transaction or other derivative agreement of any nature with respect to Voting Securities or (ii) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities, or rights or options to acquire any Voting Securities of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case of clause (i) or (ii) above;
(e) sell, offer or agree to sell, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Common Stock held by the Kanen Group or any Kanen Affiliate to any Third Party (as defined below);
(f) effect or seek, offer or propose to effect, cause, make or participate in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, business reorganization, spin-off/split-off, restructuring, liquidation, dissolution sale or transfer of all or substantially all of the Company’s assets in one or a series of transactions, sale or transfer of a majority of the outstanding shares of the Common Stock (through a merger, stock purchase, or otherwise), any changes in the Company’s capital structure or other extraordinary transaction involving the Company or any of its subsidiaries or the Company’s securities or a material amount of the assets of the Company and its subsidiaries, taken as a whole (“Extraordinary Transaction”), or frustrate or seek to frustrate the pendency or consummation of any Extraordinary Transaction approved, recommended, proposed or endorsed by the Board, or make any proposal public statement with respect to an Extraordinary Transaction (it being understood and agreed that the foregoing shall not restrict the Kanen Group from tendering shares, receiving payment for consideration by stockholders at shares or otherwise participating in any annual or special meeting of such transaction, pro rata, on the same basis as all other stockholders of the Company, or from participating in any such transaction that previously has been approved and recommended by the Board), or make any proposal, either alone or in concert with others, to the Company or FSFRthe Board that would reasonably be expected to require or result in a public announcement regarding any of the types of matters set forth above in this Section 3;
(g) enter into a voting trust or proxy, whether arrangement or agreement or subject any Voting Securities to any voting trust or proxy, arrangement or agreement, in each case other than solely with other controlled Kanen Affiliates, with respect to Voting Securities now or hereafter owned by them and other than granting proxies in solicitations approved with respect to matters recommended and submitted by the Board to the Company’s stockholders;
(h) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(i) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents Act or otherwise);
(cj) knowingly advisealone or in concert with others, encourage(i) call or seek to call or convene any meeting of stockholders, supportincluding a “town hall meeting” and any proposed action by written consent, instruct (ii) except as set forth in Section 1 of this Agreement, seek election or influence appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any person candidate to, the Board, (iii) seek the removal or resignation of any member of the Board, (iv) solicit consents from stockholders or otherwise act to seek or act by written consent, (v) initiate, encourage or participate in any “vote no,” “withhold” or similar campaign, or (vi) conduct a referendum (irrespective of whether binding or precatory) of stockholders;
(k) make any request for a stockholder list or for any other Company materials, books or records under Section 220 of the Delaware General Corporation Law, as amended, or other statutory or regulatory provisions providing for stockholder access to stockholder lists or Company books and records;
(l) make any public statement, announcement, or public proposal or request with respect to or take any action in support of (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any change in the capitalization or dividend policy of the matters covered by this Section 3.1 Company, (iii) any change in the Company’s management, business, operating strategy, governance policies or with respect corporate structure, (iv) any waiver, amendment or modification to the voting Company’s Amended and Restated Certificate of Incorporation or disposition By-Laws, as amended, or other actions which may impede the acquisition of control of the Company by any person, (v) causing any class or series of securities of the Companies at Company to be delisted from, or to cease to be authorized to be quoted on, any annual securities exchange or special meeting (vi) causing a class or series of stockholders equity securities of the Company or FSFR, except in accordance with to become eligible for termination of registration pursuant to Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d12(g)(4) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementAct;
(gm) make any disclosure, communication, announcement or statement publicly or privately, in a manner that could reasonably be expected to become public regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the its management, policies or affairs affairs, any of either the Company its securities or FSFR, assets or with respect to this Agreement, Agreement that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, understandings with any Third Party to take any action or that the Kanen Group is prohibited from taking pursuant to this Section 3;
(o) make any statement request or submit any proposal to amend or waive the terms of this Agreement, in connection with each case which would reasonably be expected to result in a public announcement of such request or proposal; or
(p) disclose any intention, plan, commitment or arrangement to do any of the foregoing. Notwithstanding anything in this Section 3 or elsewhere in this Agreement, nothing in this Agreement shall prohibit or make any investment in restrict the Kanen Group from (i) communicating privately with the Board or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoingCompany’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 this Section 3 or Section 4(d), or otherwise take or cause (iii) taking any action or make any statement inconsistent necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over the Kanen Group. Nothing in this Section 3 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 foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Cooperation Agreement (1847 Goedeker Inc.), Cooperation Agreement (Philotimo Fund, LP)
Standstill. Effective (a) ▇▇▇▇▇ agrees that, from the date of this Agreement and continuing until the later earlier of (x) the date that is fifteen (15) business days prior to the deadline for the submission of stockholder nominations for the 2019 Annual Meeting pursuant to the Bylaws or (y) the date that is one hundred fifty (150) days prior to the first anniversary of the certification of votes for the Company 2017 2018 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Restricted Period”), except to neither it nor any of its “Affiliates” or “Associates ” (as such terms are defined in the extent expressly permitted by Securities Exchange Act of 1934, as amended (the terms of this Agreement, none of the Sellers shall“Exchange Act”)) under its control will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others, with respect to each of the Ashford Entities:
(ai) solicitengage in, or knowingly encourage encourage, assist, support, advise or in any way engage in facilitate, directly or indirectly, any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignstockholders), in each case, with respect to securities of the Company Ashford Entities;
(ii) encourage, influence, advise, form, join or Fifth Street Senior Floating Rate Corp. in any way participate in any “group” (“FSFR”within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the shares of Common Stock or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “other securities of the Companies”Ashford Entities (other than a “group” that includes all or some of the ▇▇▇▇▇ entities or persons identified on the signature pages hereto, but does not include any ▇▇▇▇▇ entities or persons not identified on the signature pages hereto as of the date hereof); provided, however, that nothing herein shall limit the ability of an Affiliate of ▇▇▇▇▇ 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;
(biii) deposit any shares of Common Stock or other securities of the Ashford Entities in any voting trust or subject any shares of Common Stock or other securities of the Ashford Entities to any arrangement or agreement with respect to the voting of any shares of Common Stock or other securities of the Ashford Entities, other than any such voting trust, arrangement or agreement solely among the members of ▇▇▇▇▇ and otherwise in accordance with this Agreement;
(iv) seek, or encourage any Person, to submit nominations in furtherance of a Contested Solicitation (as defined below) for the election or removal of directors with respect to the Ashford Entities or seek, encourage or take any other action with respect to the election or removal of any directors; provided, however, that nothing in this Agreement shall prevent ▇▇▇▇▇ or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting so long as such actions do not create a public disclosure obligation for ▇▇▇▇▇ or the Company and are undertaken on a strictly confidential and non-public basis;
(A) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of any of the Company Ashford Entities or FSFRin connection with a consent solicitation, whether pursuant (B) make any offer or proposal (with or without conditions) with respect to Rule 14a-8 under any tender or exchange offer, merger, acquisition, recapitalization, restructuring, disposition or other business combination involving ▇▇▇▇▇ and any of the Exchange ActAshford Entities, either such company’s constituent documents (C) solicit a third party to make an offer or otherwise;
proposal (cwith or without conditions) knowingly advisewith respect to any tender or exchange offer, merger, acquisition, recapitalization, restructuring, disposition or other business combination involving any of the Ashford Entities, or publicly encourage, supportinitiate or support any third party in making such an offer or proposal, instruct (D) publicly comment on any third party proposal regarding any tender or influence any person exchange offer, merger, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to any of the matters covered Ashford Entities or (E) call or seek to call a special meeting of stockholders, including by this written consent;
(vi) other than in sale transactions on the NYSE or through a broker or dealer where the identity of the purchaser is not known, sell or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, any securities of the Ashford Entities or any derivatives relating to securities of the Ashford Entities to any third party that (i) has filed a Schedule 13D with respect to any of the Ashford Entities, (ii) has run (or publicly announced an intention to run) a proxy contest with respect to another company in the three (3) years prior to such time or (iii) will as a result of the transaction have Beneficial Ownership of more than 5% of any outstanding series or class of stock of any securities of the Ashford Entities;
(vii) (A) seek representation on, or nominate any candidate to, the board of directors of any Ashford Entity, except as specifically permitted by Section 3.1 1, (B) seek the removal of any member of the board of directors of any Ashford Entity, (C) make a request for any stockholder list or other books and records of any Ashford Entity, whether pursuant to Rule 14d-5 or Rule 14a-7 of the Exchange Act, Section 2-512 or Section 2-513 of the Maryland General Corporation Law, or otherwise, or make any application to a court or other Person for inspection, investigation or examination of AHP or its subsidiaries or Affiliates or (D) make any demands, objections, proposals or recommendations to any Ashford Entity or any member of the board of directors or management of any Ashford Entity in its capacity as a stockholder, on behalf of any Ashford Entity in a stockholder derivative capacity, or otherwise;
(viii) acquire, offer, seek or propose to acquire, agree to acquire, or announce any intention to acquire, directly or indirectly, whether by purchase, tender or exchange offer or otherwise, through the acquisition of control of another Person or by joining a “partnership, limited partnership, syndicate or other group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules of the SEC promulgated thereunder), Beneficial Ownership of any outstanding series or class of any securities of the Ashford Entities;
(ix) seek, alone or in concert with others, representation on the AHP Board or the boards of directors of the other Ashford Entities, except as specifically permitted in Section 1;
(x) seek to advise, encourage, support or influence any Person with respect to the voting or disposition of any securities of the Companies Ashford Entities at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingconsent solicitation; or
(oxi) take any action challenging which would cause or require any Ashford Entity to make public disclosure regarding any of the validity or enforceability of this Agreement, foregoing or make or in any way advance any request or submit any proposal that to amend the Company, FSFR, terms of this Agreement other than through non-public communications with the Company Board or the FSFR Board amend, modify or waive that would not be reasonably determined to trigger public disclosure obligations for any provision of this AgreementParty.
Appears in 2 contracts
Sources: Settlement Agreement (Ashford Hospitality Prime, Inc.), Settlement Agreement (Sessa Capital (Master), L.P.)
Standstill. Effective Executive agrees that during the Employment Term and during the Restricted Period, Executive shall not, except at the specific written request of the Board, directly or indirectly:
(a) engage in or propose, or be a Participant in any entity that directly or indirectly engages in or proposes, any material transaction between the Company or any of its Affiliates (or any of their successors), on the one hand, and Executive or any entity in which Executive is a Participant, on the other hand;
(b) acquire any equity securities of the Company or any of its Affiliates (or any of their successors) during any black out period in accordance with the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Policy (other than through entering into a qualified 10(b)5-1 Plan during an open trading window or equity securities issued to Executive by the Company upon the vesting of RSUs and PSUs issued to Executive by the Company) or be a Participant in any entity that, directly or indirectly, acquires any equity securities of the Company or any of its Affiliates (or any of their successors), provided that this Section 6.04(b) shall not restrict Executive from participating in the date AZZ Inc. 2018 Employee Stock Purchase Plan, or from acquiring equity securities of the Company through such participation, in accordance with the terms and conditions thereof as may be amended from time to time;
(c) solicit proxies, or be a Participant in any entity that directly or indirectly solicits proxies, or become a Participant in any solicitation of proxies, with respect to the election of directors of the Company or any of its Affiliates (or any of their successors) in opposition to the nominees recommended by the board of directors or similar governing body of any such entity; or
(d) engage in or be a Participant in any other activity that would be reasonably expected to result in a Change in Control of the Company or any Affiliate (or any of their successors). Notwithstanding the foregoing, the foregoing provisions of this Agreement and continuing until Section 6.04 shall not be construed to prohibit or restrict the later manner in which Executive exercises Executive’s voting rights in respect of equity securities of the certification Company acquired in a manner that is not a violation of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Employment Agreement (Azz Inc), Employment Agreement (Azz Inc)
Standstill. Effective from the date of this Agreement and continuing The Kanen Group agrees that until the later expiration of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Standstill Period, it shall not, and shall cause its controlled Affiliates and Associates (as such terms are defined belowin Rule 12b-2 under the Exchange Act) 2017 Annual Meeting of Stockholders and its and their respective principals, directors, general partners, members, officers, employees, and agents and representatives acting on their behalf (collectively, the “Standstill PeriodKanen Affiliates”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates ) not to, directly or indirectly, without the prior express written invitation or authorization by the Board:
(a) purchase or otherwise acquire, or agree to purchase or otherwise acquire, including through swap or hedging transactions or otherwise, any shares of Common Stock if, immediately after such purchase or acquisition, the Kanen Group, together with the Kanen Affiliates, would own, control or otherwise have any beneficial or other ownership interest in the aggregate of more than 9.9% of the then outstanding shares of Common Stock, provided that any shares of Common Stock granted or awarded to any of the Kanen Group Designees in their capacities as directors of the Company shall not be counted toward the 9.9% ownership limitation set forth in this Section 2(a);
(b) make, engage in or in any mannerway participate in any “solicitation” (as such term is used in the proxy rules of the SEC, but without regard to the exclusion set forth in Rule 14a-1(1)(2)(iv) under the Exchange Act) of proxies, consents or voting authorizations with respect to the election or removal of directors of the Company or any other matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, or become a “participant” (as such term is used in the proxy rules of the SEC) or assist any “participant” in any such solicitation of proxies, consents or voting authorizations from the Company’s stockholders;
(c) encourage, influence, induce or advise or assist any Person in so encouraging, influencing, inducing or advising any Person with respect to the giving, revocation or withholding of any proxy, consent or other authorization to vote any shares of Common Stock (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board in connection with any matter submitted to the Company’s stockholders for their consideration and vote);
(d) form, join, encourage, influence, advise, act in concert with or in any way participate in any “group” (as defined pursuant to Section 13(d) of the Exchange Act), with respect to any Voting Securities (as defined below), other than solely with controlled Kanen Affiliates with respect to Voting Securities now or hereafter owned by them;
(e) (i) engage in, or become a party or counterparty to, any swap or hedging transaction or other derivative agreement of any nature with respect to Voting Securities or (ii) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities, or rights or options to acquire any Voting Securities of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case of clause (i) or (ii) above;
(f) sell, offer or agree to sell, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Common Stock held by the Kanen Group or any Kanen Affiliate to any Third Party (as defined below);
(g) knowingly sell, offer or agree to sell to a Third Party, including through swap or hedging transactions or otherwise, any securities of the Company held by the Kanen Group or a Kanen Affiliate that would result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the then outstanding shares of Common Stock (including due to such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest of more than 4.9% of the outstanding shares of Common Stock prior to such sale, offer or agreement to sell), except in a transaction previously authorized and approved by the Board;
(h) effect or seek, offer or propose to effect, cause, make or participate in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, business reorganization, spin-off/split-off, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or the Company’s securities or a material amount of the assets of the Company and its subsidiaries, taken as a whole (“Extraordinary Transaction”), or frustrate or seek to frustrate the pendency or consummation of any Extraordinary Transaction approved, recommended, proposed or endorsed by the Board, or make any public statement with respect to an Extraordinary Transaction (it being understood and agreed that the foregoing shall not restrict the Kanen Group from tendering shares, receiving payment for shares or otherwise participating in any such transaction, pro rata, on the same basis as all other stockholders of the Company, or from participating in any such transaction that previously has been approved and recommended by the Board), or make any proposal, either alone or in concert with others:, to the Company or the Board that would reasonably be expected to require or result in a public announcement regarding any of the types of matters set forth above in this Section 2;
(ai) solicitenter into a voting trust or proxy, arrangement or knowingly encourage agreement or in subject any way engage in Voting Securities to any solicitation ofvoting trust or proxy, any proxies arrangement or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)agreement, in each casecase other than solely with other controlled Kanen Affiliates, with respect to Voting Securities now or hereafter owned by them and other than granting proxies in solicitations approved with respect to matters recommended and submitted by the Board to the Company’s stockholders;
(j) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Company;
(bk) make or be the proponent of any stockholder proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(l) alone or in concert with others, (i) call or seek to call or convene any meeting of stockholders, including any proposed action by written consent, (ii) except as set forth in Section 1 of this Agreement, seek election or appointment to, or representation on, the Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to, the Board, (iii) seek the removal or resignation of any member of the Board, (iv) solicit consents from stockholders or otherwise act to seek or act by written consent, or (v) conduct a referendum (irrespective of whether binding or precatory) of stockholders;
(m) make any request for a stockholder list or for any other Company materials, books or records under Section 220 of the DGCL or other statutory or regulatory provisions providing for stockholder access to stockholder lists or Company books and records;
(n) make any public statement, announcement, or public proposal or request with respect to or take any action in support of (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any change in the capitalization or dividend policy of the Company, (iii) any change in the Company’s management, business, operating strategy, governance policies or corporate structure, (iv) any waiver, amendment or modification to the Company’s certificate of incorporation or By-Laws, or other actions which may impede the acquisition of control of the Company by any person, (v) causing any class or series 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 or series of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(o) institute, either such company’s constituent documents solicit, assist, opt into, or join (or threaten to do so) any litigation, action, complaint, arbitration or other proceeding against or involving the Company or any of its current former or future directors, officers, employees, stockholders or Affiliates (including derivative actions, direct class actions or otherwise), in order to effect or take any of the actions expressly prohibited by this Section 2 or to assert any claims against the Company or any of its current or former or future directors, officers, employees, stockholders or Affiliates for breach of fiduciary duty, U.S. federal securities law disclosure violations or otherwise;
(cp) knowingly advisemake any statement or announcement that constitutes an ad hominem attack on, encourageor otherwise disparages or causes to be disparaged, supportthe Company, instruct or influence any person with respect to any of the matters covered by this Section 3.1 Company’s known Affiliates, or with respect to the voting or disposition of any securities of the Companies at Company’s past, present or future officers or directors appointed during the term of this Agreement, or take any annual action that would reasonably be expected to result in any such statement or special meeting of stockholders of announcement being publicly made by the Company or FSFR, except any Third Party (including in accordance order to comply with Section 3.4, or seek to do soany disclosure obligations under the applicable SEC rules);
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(gq) make any public disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the its management, policies or affairs affairs, any of either the Company its securities or FSFR, assets or with respect to this Agreement, Agreement that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nr) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, understandings with any Third Party to take any action or that the Kanen Group is prohibited from taking pursuant to this Section 2;
(s) make any statement request or submit any proposal to amend or waive the terms of this Agreement, in connection with each case which would reasonably be expected to result in a public announcement of such request or proposal; or
(t) disclose any intention, plan, commitment or arrangement to do 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Settlement Agreement (Philotimo Fund, LP), Settlement Agreement (Aqua Metals, Inc.)
Standstill. Effective from From and after the date of this Agreement Agreement, unless an exemption or waiver is otherwise approved in advance in writing by a majority of the Board (other than the Investor Nominees and continuing the Third Party Stockholder Nominees), each Stockholder, shall not, and shall cause its Affiliates and its and their Representatives acting on their behalf not to, until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toFallaway Date, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies “solicitation” of “proxies” (as such terms are defined under Regulation 14A under the Exchange Act) or consents or relating to the election of Directors with respect to the Company, become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in under Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, in any solicitation seeking to elect Directors not nominated by the Board, or agree or announce an intention to vote with any Person undertaking a “solicitation”, or seek to advise or influence any Person or Group with respect to the voting of consents that seeks to call a special meeting any voting securities of stockholders or by encouraging or participating in any “withhold” or similar campaign)the Company, in each case, with respect thereto, other than (subject to securities Section 5.3) with respect to the election of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Investor Nominees;
(b) make deposit any proposal for consideration by stockholders at any annual or special meeting of the stockholders voting securities of the Company in any voting trust or FSFR, whether pursuant similar arrangement (unless such securities remain subject to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiserestrictions set forth in this Agreement);
(c) form, join, knowingly adviseencourage the formation of or knowingly engage in discussions relating to the formation of, encourageor participate in a Group for the purpose of seeking control, supportor influencing the control of, instruct the Company, except for the arrangements expressly set forth in this Agreement;
(d) make any public statement relating to seeking to control or influence influencing the management, Board or policies of the Company or any person of its subsidiaries other than, in each case, through participation on the Board and the applicable committees pursuant to Article VI (Corporate Governance) of this Agreement; provided, that the Investor Nominees shall not be permitted to take any public action or make any public statement in concert with the Third Party Stockholder Nominees with respect to the Company;
(e) offer or propose to acquire or agree to acquire (or request permission to do so), whether by joining or participating in a Group or otherwise, beneficial ownership of voting securities, except as permitted by and in accordance with Section 5.1 or Article IV;
(f) publicly seek or publicly request permission to do any of the foregoing, publicly request to amend or waive any provision of Section 5.1 or this Section 5.2 (including this clause (f)), or publicly make or publicly seek permission to make any public announcement with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreementforegoing;
(g) make any disclosure, communication, announcement contest the validity or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions enforceability of the Company’s investment advisory agreement, agreements contained in Section 5.1 or this Section 5.2 or publicly seek a release of the FSFR Board of Directors restrictions contained in Section 5.1 or this Section 5.2 (the “FSFR Board”whether by legal action or otherwise), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect enter into any agreement, arrangement or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal understanding with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oi) take knowingly encourage or knowingly facilitate others to do any action challenging of the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementforegoing.
Appears in 2 contracts
Sources: Stockholders’ Agreement (INC Research Holdings, Inc.), Stockholders' Agreement (INC Research Holdings, Inc.)
Standstill. Effective from (a) From the date of this Agreement and continuing until the later expiration of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Standstill Period (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except each Investor shall not, and shall cause its respective Affiliates, principals, directors, general partners, officers, employees and, to the extent expressly permitted by acting on its behalf or at its direction, agents and other representatives (collectively, the terms “Related Persons”) not to, directly or indirectly:
(i) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in (A) any form of this Agreement, none business combination or acquisition or other transaction relating to assets or securities of the Sellers shallCompany or any of its subsidiaries, and Sellers (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (C) any form of tender or exchange offer for the Common Stock, whether or not such transaction involves a Change of Control of the Company (it being understood that the foregoing shall cause not prohibit Investors or their respective controlled Affiliates not tofrom acquiring securities of the Company by means other than a tender or exchange offer within the limitations set forth in Section 3(a)(iii));
(ii) engage in any solicitation of proxies or written consents to vote (or withhold the vote of) any voting securities of the Company, or conduct any binding or nonbinding referendum with respect to any voting securities of the Company, or assist or participate in any other way, directly or indirectly, in any manner, alone solicitation of proxies (or in concert written consents) with others:
(a) solicitrespect to any voting securities of the Company, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or otherwise become a “participant” in a “solicitation,” directly or indirectly, 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 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to vote (or withhold the vote of) any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);Company;
(biii) make any proposal for consideration by stockholders at any annual purchase or special meeting of the stockholders of the Company otherwise acquire, or FSFRoffer, whether pursuant seek, propose or agree to acquire, ownership (including beneficial ownership as defined in Rule 14a-8 13d-3 under the Exchange Act) of any securities of the Company, either any direct or indirect rights or options to acquire any such companysecurities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock of the Company, or any assets or liabilities of the Company (the taking of any such action, the “Acquisition”) such that after giving effect to such Acquisition, the Investor Group would beneficially own more than 15.0% of the Company’s constituent documents or otherwise;then outstanding shares of Common Stock.
(civ) knowingly seek to advise, encourage, support, instruct encourage or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting of (or execution of a written consent in respect of) acquisition of or disposition of any securities of the Companies Company;
(v) 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 Investor Group to any person or entity not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of the Investor Group (any person or entity not set forth in clauses (A)—(D) shall be referred to as a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of 4.9% of the shares of Common Stock outstanding at such time;
(vi) take any annual action in support of or special meeting make any proposal or request that constitutes (or would constitute if taken): (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the voting standard with respect to director elections, number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) any change in the capitalization, stock repurchase programs and practices, or dividend policy of the Company, (C) any other change in the Company’s management, business, or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Certificate of Incorporation, as amended (the “Charter”) 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, (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;
(vii) pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act communicate with stockholders of the Company or FSFR, except others;
(viii) engage in accordance any course of conduct with Section 3.4, the purpose of causing stockholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s stockholders for their vote at any meeting of the Company’s stockholders or by written consent;
(ix) call or seek to do socall, or request the call of, alone or in concert with others, any meeting of stockholders, whether or not such a meeting is permitted by the Charter or By-laws, including any “town hall meeting”;
(dx) agree, attempt, seek or propose to deposit any securities of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities of the Companies Common Stock to any arrangement or agreement with respect to the voting thereofof any Common Stock (other than any such voting trust, except arrangement or agreement solely among the Investors or any Affiliates thereof that is otherwise in accordance with Section 3.4;this Agreement);
(exi) knowingly seek act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or take other action otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or FSFRseek, including facilitate, encourage or take any other action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification with respect to the terms appointment, election or conditions removal of either the Company’s or FSFR’s investment advisory agreement;any directors;
(fxii) form, join in or in any other way participate in a partnership, limited partnership, syndicate or other any “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreementor otherwise) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board Company or its securities; provided, however, that nothing in this subsection (xii) shall limit the ability of Directors (an Affiliate of the Investor Group to join the “Company Board”)group” following the execution of this Agreement upon notice to the Company, so long as any such Affiliate first executed a joinder to this Agreement that binds such Affiliate to the Company investment advisor same degree as any other member of the Investor Group (it being understood that any Schedule 13D amendment or other legally required update or elective disclosure and the terms and conditions contents thereof may not violate any of the restrictions set forth in this Agreement);
(xiii) demand a copy of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting list of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any its other books and records in Sellers’ capacity as a Company or FSFR stockholder;records;
(jxiv) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRcommence, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sellencourage, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, join as a party, or knowingly assist any other person in instituting, soliciting or joining, support any litigation, arbitration arbitration, derivative action in the name of the Company or any class action or other proceeding against the Company or FSFR or any of their its current or former directors officers or officers directors, in each case with the intent of circumventing the provisions of this Section 3, or take any action challenging the validity or enforceability of any of the provisions of this Section 3 or Section 25; provided, however, that the foregoing shall not prevent any Investor from (including derivative actions), other than (iA) bringing litigation against the Company to enforce the provisions of this Agreement and Agreement, (iiB) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against an Investor or (C) responding to or complying with a party to this Agreement validly issued legal process that neither the Investor Group nor any of their Affiliates initiated, encouraged or FSFR against Sellers;facilitated;
(mxv) enter into make any request or engage submit any proposal to amend or waive the terms of this Section 3 other than through non-public communications with the Company that would not be reasonably expected to result in or involve public disclosure obligations for any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;party; or
(nxvi) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written understandings with any person or oral) withentity with respect to any action the Investors are prohibited from taking pursuant to this Section 3, or advise, finance, assist, knowingly encourage or seek to knowingly persuade any person or encourage, any Third Party entity to take any action or make any statement in connection with respect to 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 foregoingsuch action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing. Notwithstanding the foregoing, nothing in this Section 3 or elsewhere in this Agreement shall prohibit or restrict the Investor Group from: (A) communicating privately with the Board or any executive officer or director of the Company, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications and subject to the confidentiality obligations to the Company of any such director or officer; or
(oB) take privately communicating to any action challenging of their potential investors or investors based on publicly available factual information regarding the validity Company consistent with prior practice in any of the Investors’ annual and quarterly investor letters, provided such communications are not in violation of applicable law, rules or enforceability regulations, understood by all parties to be private communications and not undertaken with the intent to circumvent Section 3 or Section 25 of this Agreement, or make or in ; (C) privately communicating with potential director candidates to serve on the Board; and (D) privately communicating to any way advance any request or proposal that the Company, FSFR, stockholders of the Company Board about factual matters concerning the Company in a manner that otherwise does not violate this Agreement; provided that such communications are not reasonably expected to be publicly disclosed and are understood by all parties to be private communications. None of the Investors nor any of their Affiliates shall seek to do directly or indirectly through any director of the FSFR Board amendCompany or other individual anything that would be prohibited under this Agreement if done by any of the Investors or their Affiliates or their agents and representatives.
(b) Notwithstanding anything set forth herein to the contrary, modify upon the public announcement by the Company of entry by the Company into a definitive agreement for a transaction that would constitute a Change of Control and which Change of Control transaction was not encouraged, facilitated or waive solicited by any provision of Investors or their Related Persons, this Agreement shall immediately and automatically terminate in its entirety and no party hereunder shall have any further rights or obligations under this Agreement; provided, however, no party shall be released from any breach of this Agreement that occurred prior to the termination of this Agreement.
(c) For purposes of this Agreement:
Appears in 2 contracts
Sources: Cooperation and Support Agreement (Landec Corp \Ca\), Cooperation and Support Agreement (Legion Partners Asset Management, LLC)
Standstill. Effective from (i) For a period of five (5) years beginning on the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders hereof (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallGE shall not, and Sellers shall cause their respective controlled its Representatives and Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) 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 (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate inin or knowingly encourage, any acquisition of Company Common Stock (including in derivative form) or any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase combination or other extraordinary similar transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries or joint ventures its Subsidiaries that would result in GE and its Affiliates beneficially owning more than 65% of the voting power of the outstanding shares of Company Common Stock; provided that GE shall be permitted to make a private proposal to the Non-GE Directors that would not reasonably be expected to require the Company or any of their respective securities its Affiliates to make any public announcement or other disclosure. The foregoing shall not prohibit:
(eachA) GE or any of its Representatives or Affiliates from acquiring Company Common Stock by way of stock splits, an “Extraordinary Transaction”stock dividends, reclassifications, recapitalizations or other distributions by the Company to all holders of Company Common Stock on a pro rata basis;
(B) acquisitions by GE or any of its Representatives or Affiliates of Company Common Stock (x) approved by the Conflicts Committee or (y) pursuant to the exercise of the preemptive rights set forth in Section 4.3; or
(C) GE or any of its Affiliates from acquiring Company Common Stock pursuant to and in accordance with the terms of the Exchange Agreement and Section 3.03 or Section 3.05 of the Newco LLC Agreement.
(ii) Without limiting Section 4.2(b)(i), during the Standstill Period GE shall not, and shall cause its Representatives and Affiliates not to, directly or indirectly, in any manner, (A) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) to vote any Company Common Stock in connection with the election of the Non-GE Directors or the removal of any Non-GE Director, (B) solicit, knowingly encourage or knowingly facilitate, directly or indirectly, any third party to engage in any such solicitation, (C) make any public statement (or disclosure regarding statement to an Other Stockholder) in support of any intentsuch third-party solicitation or against any of the Company’s director nominees, purpose(D) form, plan join or proposal in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Extraordinary Transaction Company Common Stock or this Agreement that is inconsistent with the provisions of this Agreement(E) call, including 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 or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of, or otherwise seek or assist in the calling of any a special meeting of the stockholders at either of the Company or FSFR, including by written consentCompany; provided that subclauses (D) and (E) shall only apply if taken in furtherance of the actions described in subclauses (A), (iiB) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, and (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(iC) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and subsection (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement).
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Baker Hughes a GE Co)
Standstill. Effective from From the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Termination Date, except pursuant to the extent expressly permitted a negotiated transaction approved by the terms of this AgreementBoard, none of the Sellers shall, Stockholder and Sellers shall cause their respective controlled its Affiliates not to, directly or indirectlywill not, in any manner, alone directly or in concert with othersindirectly:
(a) solicitmake, effect, initiate, cause or participate in (A) any acquisition of beneficial ownership of any securities of Commerce and its Related Entities, (B) any acquisition of any assets of Commerce and its Related Entities, (C) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Commerce and its Related Entities, or knowingly encourage involving any securities or assets of Commerce and its Related Entities or (D) any “solicitation” of “proxies” (as those terms are used in any way engage in any solicitation of, any proxies the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Commerce;
(b) form, join or become a “participant” participate in a “solicitation,group” directly or indirectly, (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (amended, and the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignrules promulgated thereunder), in each casepooling agreement, syndicate or voting trust with respect to the beneficial ownership of any securities of the Company Commerce, or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “otherwise act in concert with another stockholder of securities of Commerce for the Companies”);
(b) make any proposal for consideration by stockholders at any annual purpose of acquiring, holding, voting or special meeting disposing of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such companyCommerce’s constituent documents or otherwisesecurities;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekact, alone or in concert with others, representation onto seek to control or influence the management, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal policies of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCommerce;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(od) take any action challenging which might force Commerce to make a public announcement regarding any of the validity or enforceability types of matters set forth in clause “(a)” of this Agreement, or make or in any way advance any sentence;
(e) request or proposal propose that the CompanyCommerce (or its directors, FSFRofficers, the Company Board employees or the FSFR Board amendagents), modify directly or indirectly, amend or waive any provision of this AgreementSection 3.2, including this subsection (e);
(f) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;
(g) assist, induce or encourage any other Person to take any action referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;
(h) enter into any discussions or arrangements with any third party with respect to the taking of any action referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence; or
(i) vote any capital stock of Commerce in favor of, or initiate, propose or otherwise solicit stockholders of Commerce for the approval of one or more stockholder proposals or induce or attempt to induce any other individual, firm, corporation, partnership, or other entity to initiate any stockholder proposal.
Appears in 2 contracts
Sources: Voting and Standstill Agreement (Commerce Energy Group, Inc.), Separation Agreement (Commerce Energy Group, Inc.)
Standstill. Effective from (a) During the date Standstill Period, each Legion Party shall not, and shall cause its Representatives not to, directly or indirectly:
(i) make any announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, (A) any form of this Agreement and continuing until the later business combination or acquisition or other transaction relating to a material amount of the certification assets or securities of votes Nutrisystem or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to Nutrisystem or any of its subsidiaries or (C) any form of tender or exchange offer for the Company 2017 Annual Meeting shares of Stockholders Common Stock, whether or the certification not such transaction involves a Change of votes for the FSFR Control (as defined below) 2017 Annual Meeting of Stockholders Nutrisystem; it being understood that the foregoing shall not prohibit the Legion Parties or their Affiliates from acquiring Common Stock within the limitations set forth in Section 5(a)(iii);
(the “Standstill Period”)ii) engage in any solicitation of proxies or written consents to vote any voting securities of Nutrisystem, except or conduct any type of binding or nonbinding referendum with respect to the extent expressly permitted by the terms any voting securities of this AgreementNutrisystem, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toor assist or participate in any other way, directly or indirectly, in any manner, alone solicitation of proxies (or in concert written consents) with others:
(a) solicitrespect to, or knowingly encourage or in any way engage in any solicitation from the holders of, any proxies voting securities of Nutrisystem, or consents or otherwise become a “participant” in a “solicitation,” directly or indirectly, 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 1934, as amended (the “Exchange Act”) ), to vote any securities of proxies or consents Nutrisystem (includingincluding by initiating, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(biii) make purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any proposal for consideration by stockholders at securities of Nutrisystem, any annual direct or special meeting indirect rights or options to acquire any such securities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock, or any assets or liabilities of Nutrisystem; provided that the Legion Parties and their Affiliates, in the aggregate, may acquire beneficial ownership of up to 9.9% of the stockholders outstanding shares of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseCommon Stock;
(civ) knowingly seek to advise, encourage, support, instruct encourage or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of Nutrisystem;
(v) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the Companies securities of Nutrisystem or any rights decoupled from the underlying securities held by any of the Legion Parties to any person not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of Nutrisystem, or (D) an Affiliate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) that would knowingly (after due inquiry) result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of five percent (5.0%) of the shares of Common Stock outstanding at such time;
(vi) take any public action in support of or make any proposal, statement or request that publicly (A) seeks to advise, control, change, or influence the Board or management of the Company, including any plans or proposals to change the voting standard with respect to director elections, number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) seeks any material change in, or criticizes, the capitalization, stock repurchase programs and practices or dividend policy of Nutrisystem, (C) seeks any other material change in, or criticizes, Nutrisystem’s management, business or corporate structure, or (D) seeks to have Nutrisystem waive or make amendments or modifications to Nutrisystem’s Amended and Restated Bylaws (as amended, the “Bylaws”), or other actions that may impede or facilitate the acquisition of control of Nutrisystem by any person;
(vii) communicate with stockholders of Nutrisystem or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act;
(viii) engage in any course of conduct with the purpose of causing stockholders of Nutrisystem to vote contrary to the recommendation of the Board on any matter presented to Nutrisystem’s stockholders for their vote at any annual or special meeting of Nutrisystem’s stockholders of the Company or FSFR, except in accordance with Section 3.4, by written consent;
(ix) call or seek to do socall, or request the call of, alone or in concert with others, any meeting of stockholders, whether or not such a meeting is permitted by the Bylaws, including a “town hall meeting”;
(dx) agree, attempt, seek or propose to deposit any securities shares of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities shares of the Companies Common Stock to any arrangement or agreement with respect to the voting thereofof any shares of Common Stock (other than any such voting trust, except arrangement or agreement solely among the Legion Parties that is otherwise in accordance with Section 3.4this Agreement);
(exi) knowingly seek seek, or encourage or advise any person person, to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company Nutrisystem or FSFRseek, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies encourage or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board election or removal of Directors any directors;
(xii) form, join or in any other way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock; provided, however, that nothing herein shall limit the ability of an Affiliate of a Legion Party to join the “Company Board”)group” following the execution of this Agreement, the Company investment advisor or so long as any such Affiliate agrees in writing to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Company’s investment advisory agreementExchange Act, files a Schedule 13D or an amendment thereof, as applicable, within two (2) business days after disclosing that the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or Legion Party has formed a group with respect to this Agreement, that is inconsistent with the provisions of this Agreementsuch Affiliate;
(hxiii) effect demand a copy of Nutrisystem’s list of stockholders or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any its 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, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), books and records or make any statement request under any statutory or regulatory provisions of Delaware law;
(xiv) make any request or submit any proposal to amend or waive the terms of this Section 5 other than through non-public communications with Nutrisystem that would not be reasonably likely to trigger public disclosure regarding obligations for any intentParty; or
(xv) enter into any discussions, purposenegotiations, plan agreements or proposal understandings with any person with respect to any Extraordinary Transaction or this Agreement that is inconsistent with action 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents Legion Parties are prohibited from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party taking pursuant to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withSection 5, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party person to take any action or make any statement in connection with respect to 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 foregoingsuch action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging . Notwithstanding anything to the validity or enforceability of contrary contained in this Agreement, the Legion Parties shall not be prohibited or make restricted from: (A) communicating privately with the Board or any officer or director of Nutrisystem, in the manner set forth for communicating with the Company in the Company Policies applicable to all shareholders, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any of the Legion Parties or their respective Affiliates, Nutrisystem or its Affiliates or any Third Party, subject in any case to any confidentiality obligations to Nutrisystem of any such director or officer and applicable law, rules or regulations; (B) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over any Legion Party or its Affiliates, provided that a breach by the Legion Parties of this Agreement is not the cause of the applicable requirement; (C) privately communicating to any of their potential investors or investors publicly available information regarding Nutrisystem, provided such communications are not otherwise reasonably expected to be publicly disclosed; or (D) disclosing its bona fide voting intention on any Extraordinary Transaction pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act.
(b) The provisions of this Section 5 shall not limit in any respect the actions of any director of Nutrisystem in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to Nutrisystem and its stockholders and the Company Policies (it being understood and agreed that neither the Legion Parties nor any of their Affiliates shall seek to do indirectly through the New Directors (or any Replacement) anything that would be prohibited if done by any of the Legion Parties or their Affiliates). The provisions of this Section 5 shall also not prevent the Legion Parties from freely voting their shares Common Stock (except as otherwise provided in Section 2 hereto).
(c) At any time the Legion Parties cease to have a Schedule 13D filed with the SEC and during the Standstill Period, upon reasonable written notice from Nutrisystem pursuant to Section 17 hereof, the Legion Parties shall promptly provide Nutrisystem with information regarding the amount of the securities of Nutrisystem (a) beneficially owned by each such entity or individual, (b) with respect to which the Legion Parties have (i) any direct or indirect rights or options to acquire or (ii) any economic exposure through any derivative securities or contracts or instruments in any way advance related to the price of such securities, or (c) with respect to which any request Legion Party has hedged its position by selling covered call options. This ownership information provided to Nutrisystem will be kept strictly confidential unless required to be disclosed pursuant to applicable laws and regulations, any subpoena, legal process or proposal that the Company, FSFR, the Company Board other legal requirement or the FSFR Board amend, modify in connection with any litigation or waive any provision of similar proceedings in connection with this Agreement.
Appears in 2 contracts
Sources: Cooperation Agreement (Nutri System Inc /De/), Cooperation Agreement (Legion Partners Asset Management, LLC)
Standstill. Effective from During the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted unless approved in advance in writing by the terms Board of this AgreementDirectors, none each of the Sellers shall▇▇▇▇ Park and ▇▇▇▇▇▇▇▇▇ shall not, and Sellers shall cause their respective controlled each of its Affiliates not toto not, directly or indirectly, in any manner, alone or in concert with others:
(a) solicitexcept as set forth in Section 7, acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company or any of its subsidiaries, or knowingly encourage rights or options to acquire interests in or any way engage derivative securities with respect to any of the Company’s loans, debt securities, equity securities or assets; provided, however, that in addition to any solicitation ofshares purchased pursuant to Section 7, the Company agrees that ▇▇▇▇▇▇▇▇▇ may purchase up to an aggregate of Two Hundred Fifty Thousand (250,000) shares of Common Stock at a purchase price per share of no less than $2.00 from current or former Principals of ▇▇▇▇ Park during the Agreement Period without violating this Section 9(a);
(b) make any proxies statement or consents proposal (whether public or become a “participant” private) to any of the Company’s stockholders (other than in a confidential manner to any of the Company’s or its subsidiaries’ officers, directors or managers who are also stockholders of the Company) regarding, or make any public announcement, proposal or offer (including any “solicitation,” directly or indirectly, of “proxies” as such terms are defined or used in Regulation 14A under of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies with respect to, or consents otherwise solicit, seek or offer to effect (including, without limitationfor the avoidance of doubt, indirectly by means of communication with the press or media): (i) any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” business combination, merger, tender offer, exchange offer or similar campaign), in each case, with respect to securities of transaction involving the Company or Fifth Street Senior Floating Rate Corp. any of its subsidiaries, (“FSFR”ii) any restructuring, recapitalization, liquidation or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of similar transaction involving the Company or FSFRany of its subsidiaries, whether pursuant (iii) any change to Rule 14a-8 under the Exchange ActArticles of Incorporation, either such companythe Bylaws or any articles of incorporation, bylaws or other organizational or governing documents of any of the Company’s constituent documents subsidiaries, (iv) any change to the Company’s or otherwiseits subsidiaries’ business activities or corporate structure, (v) any acquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or assets, (vi) except as set forth in Section 8, any representation on the Board of Directors or otherwise seek to control or influence the management, Board of Directors or policies of the Company, (vii) any waiver, termination or amendment to the provisions of this Agreement, or (viii) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this Section 9;
(c) knowingly adviseinstigate, encourageencourage or assist any third party (including, supportbut not limited to, instruct forming a “group” with any such third party) to do or influence enter into any person discussions or agreements with any third party with respect to any of the matters covered by actions set forth in this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;9; or
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could which would reasonably be expected to require the Company or FSFR any of its affiliates to make any a public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with announcement regarding any of the foregoing, actions or make any investment matters set forth in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementSection 9.
Appears in 2 contracts
Sources: Termination and Release Agreement (Ricciardi Christopher), Termination and Release Agreement (Institutional Financial Markets, Inc.)
Standstill. Effective from (a) During the date Covered Period (unless specifically otherwise requested in writing by the Company, acting through a resolution of this Agreement and continuing until the later a majority of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”Company’s directors), each Member of the Nokomis Group shall not, and shall cause each Nokomis Affiliate not to (except to the extent as expressly permitted by the terms of set forth in this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to), directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” of “proxies” (as such terms are defined in or used under the Exchange Act and Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”thereunder) of proxies or consents to vote, or seek to advise, encourage or influence (including, without limitationfor the avoidance of doubt, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, ) any person with respect to the voting of any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the CompaniesCompany”);
) with respect to the election or removal of directors or stockholder proposals, or become a “participant” (bas such term is defined in or used under the Exchange Act and Regulation 14A thereunder) make in any proposal contested solicitation for consideration by stockholders the election of directors with respect to the Company (other than a solicitation or acting as a participant in support of all of the nominees of the Board at any annual stockholder meeting) or special meeting make, be the proponent of the stockholders of the Company or FSFR, whether cause any person to initiate any stockholder proposal pursuant to Rule 14a-8 under the Exchange Act, either such companythe Company’s constituent documents Bylaws or otherwise;
(cii) knowingly adviseform, join, encourage, supportinfluence, instruct advise or influence in any way participate in any group (within the meaning of Section 13(d)(3) under the Exchange Act) with any person who is not identified on Schedule A as a Member of the Nokomis Group or a Nokomis Affiliate (any such person, a “Third Party”) with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise in accordance with Section 3.4, or seek to do so;
(d) any manner agree, attempt, seek or propose to deposit any securities of the Companies Company in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(eiii) knowingly seek or encourage any person to submit nominations consciously work in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toparallel, or is reasonably likely to result inotherwise participate in a joint activity or course of action, with any Third Party (other than the replacement Company) toward acquiring control or otherwise exercising a controlling influence over the management and policies of the investment advisor of the Company Company, whether or FSFR, or a modification not pursuant to the terms or conditions of either the Company’s or FSFR’s investment advisory an express agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), provided, however, that this clause shall not preclude the tender by the Nokomis Group or make a Nokomis Affiliate of any statement securities of the Company into any tender or disclosure regarding any intentexchange offer, purpose, plan or proposal vote with respect to any Extraordinary Transaction or this Agreement that is inconsistent in accordance 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionSection 1(c);
(iv) (iA) call or call, seek to call or request the calling call of any meeting of stockholders at either the Company or FSFRstockholders, including by written consent, (iiB) seek, alone or in concert with others, seek representation on, or nominate any candidate to, the Company Board or the FSFR Board, except as specifically set forth in Section 1, (iiiC) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (vD) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (viE) conduct a referendum of the Company or FSFR stockholders stockholders, or (viiF) make a request for any stockholders stockholder list or any other books and records of the Company, whether pursuant to applicable law, the Company’s Bylaws or otherwise, except by any Nokomis Designee in Sellers’ his or her capacity as a Company or FSFR stockholderdirector;
(jvi) purchase except in connection with the enforcement of this Agreement or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of passive participation as a class member in any securities issued by the Company or FSFRclass action (which, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale avoidance of doubt, shall not include participation as a name or otherwise transfer lead plaintiff) with respect to any event or dispose of (each, a “Transfer”) any securities issued by circumstance occurring prior to the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) date of this Agreement;
(l) institute, solicit initiate, encourage or join, as a party, or knowingly assist participate in any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding litigation against the Company or FSFR or any of its subsidiaries or their current or former respective directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated byofficers, or in any derivative litigation on behalf ofof the Company, a party to this Agreement or FSFR against Sellersexcept for testimony in any legal proceeding that may be required by law;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(ovii) take any action challenging the validity or enforceability in support of this Agreement, or make any proposal or in any way advance any request that constitutes: (A) advising, controlling, changing or proposal that influencing the Board or management of the Company, FSFRincluding any plans or proposals to change the number or term of directors, the Company Board removal of any directors, or to fill any vacancies on the FSFR Board amendBoard, modify (B) any material change in the capitalization, stock repurchase programs and practices or waive dividend of the Company, (C) any provision of this Agreement.other material change in the Company’s management, business or corporate structure,
Appears in 2 contracts
Sources: Appointment and Standstill Agreement (Widepoint Corp), Appointment and Standstill Agreement (Widepoint Corp)
Standstill. Effective from From the date of this Agreement and continuing until the later of Expiration Date or until such earlier time as the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except restrictions in this paragraph 9 terminate pursuant to the extent expressly permitted by the terms of this Agreement, none of the Sellers shalleach BW Party shall not, and Sellers shall cause its Affiliates and Associates and their respective controlled Affiliates principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf not to, directly or indirectly, in any manner, alone absent prior express written invitation or in concert with othersauthorization on behalf of the Board:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in Regulation 14A under the Securities Exchange Act of 1934, as amended and the rules promulgated thereunder (the “Exchange Act”)) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of members of the Board or the board of directors of any Affiliate of the Company (an “Affiliate Board”) or any other matter or proposal or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies or consents;
b) knowingly encourage, advise or knowingly influence any Third Party or knowingly assist any Third Party in so knowingly encouraging, advising or knowingly influencing any Third Party with respect to the Company giving or FSFRwithholding of any proxy, including any action consent or other authority to vote (other than such encouragement, advice or influence that is intended to, or is reasonably likely to result in, consistent with the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the CompanyBoard’s or FSFRany Affiliate Board’s investment advisory agreementrecommendation in connection with such matter);
(fc) form, join or act in or in concert with any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, including a group “group” as defined under pursuant to Section 13(d) of the Exchange Act (except such participation related to and the reasonable unwinding of any such group currently existing as of the date of this Agreement) rules promulgated thereunder, with any entity or person who is not identified on Schedule I hereto (any such person, a “Third Party”), unaffiliated with the BW Parties and with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementVoting Securities;
(gd) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist participate, directly or facilitate any other person to effect or seekindirectly, offer or propose to effect or participate in, in any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, sale of a division, sale of substantially all assets, recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures Affiliates or any of its or their respective securities or assets (each, an “Extraordinary Transaction”)) (it being understood that the foregoing shall not restrict the BW Parties or any of its Affiliates or Associates from tendering (or failing to tender) shares, receiving payment or other consideration for shares, voting its shares “for” or “against” any Extraordinary Transaction, or make otherwise participating in any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement that is inconsistent with such transaction on the provisions same basis as other stockholders of this Agreement, including any intent, purpose, plan or proposal that is conditioned onthe Company, or would require waiver, amendment, nullification or invalidation of, any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to from participating in any such intent, purpose, plan, proposal or conditiontransaction that has been approved by the Board);
(i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or an Affiliate Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board or an Affiliate Board (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consentexcept as otherwise permitted in this Agreement), (ii) seek, alone or in concert with others, representation onor knowingly encourage any Person to seek, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or an Affiliate Board, or (iii) request that, or knowingly encourage any Person to request that, the FSFR BoardCompany or an Affiliate of the Company call any meeting of such company’s stockholders, (iv) seekpresent any matter at any meeting of the Company’s or any of its Affiliates’ stockholders, or (v) conduct, or knowingly encourage any Person to conduct, a referendum of the Company’s or any of its Affiliate’s stockholders;
f) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) to the Company or any of its Affiliates;
g) make any request for stock list materials or other books and records of the Company or any of its Affiliates under the Maryland General Corporation Law, the laws of the jurisdiction of any such Affiliate’s organization or formation or other statutory or regulatory provisions providing for stockholder access to books and records;
h) except as set forth herein, make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board or an Affiliate Board, (ii) any material change in the capitalization of the Company or any of its Affiliates, (iii) any other material change in the Company’s or any of its Affiliate’s management, business or corporate structure, or (iv) any waiver, amendment or modification to the Company’s Charter or Bylaws or the governing documents of any of its Affiliates; i) enter into any negotiations, agreements or understandings with any Third Party to take any action that a BW Party is prohibited from taking pursuant to this paragraph 9; j) make, directly or indirectly, any proposal, either alone or in concert with others, to the Company, its Affiliates, the Board or support an Affiliate Board that would reasonably be expected to require a public announcement inconsistent with the provisions of this paragraph 9;
k) make any Third Party in seekingpublic request or submit any public proposal, directly or indirectly, to replace amend or waive the investment advisor terms of this Agreement, in each case which would reasonably be expected to require a public announcement of such request or proposal;
l) sell, offer or agree to sell, in each case, through swap, hedging or other derivative transactions, the securities of the Company or the investment advisor of FSFR, (v) solicit consents any rights decoupled from the Company or FSFR stockholders or otherwise act or seek underlying securities held by a BW Party to act by written consentany Person; provided that, (vithe foregoing restrictions in this paragraph 9(l) conduct a referendum of shall terminate automatically upon the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership liquidation of any securities issued joint venture contemplated by the Company or FSFRJV Agreement, or any securities convertible into or exchangeable for securities issued by if not earlier terminated pursuant to the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) terms of this Agreement;
(lm) enter into a voting trust, arrangement or agreement or subject any securities of the Company to any voting trust, arrangement or agreement; or n) institute, solicit solicit, assist or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, join any litigation, arbitration or other proceeding against or involving the Company or FSFR Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions)) in order to effect or take any of the actions expressly prohibited by this paragraph 9; provided, other than that the restrictions in this paragraph 9 shall terminate automatically on the earlier of (i) litigation to enforce the provisions of this Agreement Expiration Date and (ii) counterclaims with respect to as a non-exclusive remedy for any proceeding initiated by, or on behalf of, a party to material breach of this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right by the Company (including, without limitation, a failure to appoint the New Director and otherwise constitute the Board in accordance with paragraph 1 or a failure to issue the Company Press Release in accordance with paragraph 8), upon ten (10) business days’ prior written notice by either of the BW Parties following any put or call option or swap transactionsuch material breach of this Agreement by the Company if such breach has not been cured within such notice period, provided that a BW Party is not in material breach of this Agreement at the time such notice is given (such periods contemplated by (i) and (ii), the “Restricted Period”); provided further, that the restrictions in this paragraph 9 shall not apply with respect to or having any measurement relating (x) the announcement by the Company of a definitive agreement with respect to any securities Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Companies;
(n) enter into any negotiations, arrangements, understanding Voting Securities or agreements (whether written all or oral) withsubstantially all of the Company’s assets, or advise(y) the commencement of any tender or exchange offer (by a person other than a BW Party or their respective Affiliates) which, financeif consummated, assistwould constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, seek where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to knowingly persuade Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or encourageexchange offer. Nothing contained in this paragraph 9 shall prevent a BW Party from (i) privately communicating with the Company or the Board (so long as such private communication does not require public disclosure by the Company or a BW Party), and (ii) making any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a Third Party. Nothing in this Agreement shall prevent (a) the Company from responding to such a BW Party statements described in clause (ii) of the preceding sentence, subject to take the obligations of the Parties under paragraph 10, or (b) the Company or a BW Party from making any action factual statement as required by applicable legal process, subpoena, or make legal requirement or as part of a response to a request for information from any statement in connection governmental authority with jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of discretionary acts by a BW Party or any Affiliate of a BW Party or by the Company or any of its Affiliates, as applicable). Notwithstanding anything to the foregoing, or make any investment contrary in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, nothing in this paragraph 9 shall prohibit or make restrict the New Director from exercising his or in any way advance any request her rights and fiduciary duties as a director of the Company or proposal that restrict his or her discussions solely among other members of the Board and/or management, advisors, representatives or agents of the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Cooperation Agreement (Colony Capital, Inc.), Cooperation Agreement (Colony Capital, Inc.)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicitDuring the Standstill Period, without the prior written approval of a majority of the Independent Directors, Freeport shall not, and shall not permit its controlled affiliates to: (i) acquire, offer or propose to acquire, or knowingly encourage agree or seek to acquire, or solicit the acquisition of, by purchase or otherwise, any equity, debt or equity-linked securities of the Issuer if, following such acquisition, Freeport and its controlled affiliates would own securities of the Issuer representing more than 103% of the percentage of the outstanding shares of Common Stock (including shares of Common Stock issuable upon conversion of any Preferred Shares owned by Freeport and its controlled affiliates) owned by Freeport and its controlled affiliates on the date hereof (including shares of Common Stock issuable upon conversion of any Preferred Shares owned by Freeport and its controlled affiliates); (ii) form, join or in any way engage participate in, or enter into any agreement, arrangement or understanding with, a “group” (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations thereunder) with respect to any equity or equity-linked securities of the Issuer; (iii) commence any tender or exchange offer for any securities of the Issuer; (iv) enter into or agree, offer, propose or seek (whether publicly or otherwise) to enter into, or otherwise be involved in any solicitation or part of, any proxies acquisition transaction, merger or consents other business combination relating to all or become a “participant” in a “solicitation,” directly part of the Issuer or indirectly, as such terms are defined in Regulation 14A under any of its subsidiaries or any acquisition transaction for all or part of the Securities Exchange Act assets of 1934, as amended the Issuer or any of its subsidiaries or any of their respective businesses; (the “Exchange Act”v) of proxies call or consents (including, without limitation, any solicitation of consents that seeks seek to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company Issuer or FSFRinitiate any stockholder proposal for action by stockholders of the Issuer; (vi) enter into any discussions, whether pursuant to Rule 14a-8 under the Exchange Actnegotiations, either such company’s constituent documents arrangements or otherwise;
(c) knowingly advise, encourage, support, instruct or influence understandings with any other person with respect to any of the matters covered by this Section 3.1 foregoing activities; (vii) advise, assist, encourage, act as a financing source for or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise invest in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise foregoing activities; (viii) take or cause any action inconsistent with the purpose and intent of this Section 2.3; (ix) disclose any intention, plan or make any statement arrangement inconsistent with any of the foregoing, (x) with respect to any of the foregoing provisions of this paragraph, request the Issuer to amend or waive any such provisions or otherwise consent to any action inconsistent with any such provisions; or
(oxi) take any initiative with respect to the Issuer which could require the Issuer to make a public announcement regarding (A) such initiative or (B) any of the foregoing activities; or (xii) bring any action challenging or otherwise act to contest the validity or enforceability of this Section 2.3.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the members of Freeport’s Board of Directors who are not also Shared Management Members shall be permitted to communicate on a confidential basis with the Independent Directors regarding any matter, including potential transactions between Freeport and the Issuer and potential waivers or make or in any way advance any request or proposal that amendments to the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision terms of this Agreement.
(c) Each of the Parties agrees that any supplement, modification, amendment, or waiver by the Issuer of the terms or provisions of that certain Stockholder Agreement, dated as of December 30, 2010, by and between the Issuer and Plains, with respect to a transaction, arrangement or understanding involving both Plains or its controlled affiliates and Freeport or its controlled affiliates must be approved in writing in advance by a committee of the Board consisting solely of members of the Board who are Independent Directors.
Appears in 2 contracts
Sources: Shareholder Agreement (McMoran Exploration Co /De/), Shareholder Agreement (Freeport McMoran Copper & Gold Inc)
Standstill. Effective from From the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Termination Date, except pursuant to the extent expressly permitted a negotiated transaction approved by the terms of this AgreementBoard, none of the Sellers shall, Stockholder and Sellers shall cause their respective controlled its Affiliates not to, directly or indirectlywill not, in any manner, alone directly or in concert with othersindirectly:
(a) solicitmake, effect, initiate, cause or participate in (A) any acquisition of beneficial ownership of any securities of Commerce and its Related Entities, (B) any acquisition of any assets of Commerce and its Related Entities, (C) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Commerce and its Related Entities, or knowingly encourage involving any securities or assets of Commerce and its Related Entities or (D) any "solicitation" of "proxies" (as those terms are used in any way engage in any solicitation of, any proxies the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Commerce;
(b) form, join or become a “participant” participate in a “solicitation,” directly or indirectly, "group" (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (amended, and the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignrules promulgated thereunder), in each casepooling agreement, syndicate or voting trust with respect to the beneficial ownership of any securities of the Company Commerce, or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “otherwise act in concert with another stockholder of securities of Commerce for the Companies”);
(b) make any proposal for consideration by stockholders at any annual purpose of acquiring, holding, voting or special meeting disposing of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseCommerce's securities;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekact, alone or in concert with others, representation onto seek to control or influence the management, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal policies of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCommerce;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(od) take any action challenging which might force Commerce to make a public announcement regarding any of the validity or enforceability types of matters set forth in clause "(a)" of this Agreement, or make or in any way advance any sentence;
(e) request or proposal propose that the CompanyCommerce (or its directors, FSFRofficers, the Company Board employees or the FSFR Board amendagents), modify directly or indirectly, amend or waive any provision of this Agreement.Section 3.2, including this subsection (e);
(f) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses "(a)", "(b)", "
(d) or "
(e) of this sentence;
Appears in 2 contracts
Sources: Voting and Standstill Agreement (Commerce Energy Group Inc), Voting and Standstill Agreement (Commerce Energy Group Inc)
Standstill. Effective from In the date event that the common stock of this Agreement and continuing until the later MacroGenics becomes listed on a national securities exchange in an initial public offering (an “IPO”) ***, Gilead agrees that neither it nor any of the certification its Affiliates, acting alone or as part of votes any 13D Group, shall directly or indirectly, for the Company 2017 Annual Meeting a period of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders *** (the “Standstill Period”), except without the prior written approval of MacroGenics’ Board of Directors:
14.1.1 acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the extent expressly permitted by the terms Securities and Exchange Act of this Agreement, none 1934) of any substantial part of the Sellers shallassets or businesses of MacroGenics or of any voting securities of MacroGenics, and Sellers shall cause their respective controlled Affiliates not toor any rights or options to acquire any such ownership (including from a third party);
14.1.2 make, or in any way participate, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” (as such terms are defined used in Regulation 14A under the proxy rules of the Securities and Exchange Act of 1934Commission) to vote, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks seek to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct advise or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any voting securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soMacroGenics;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) 14.1.3 form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitationin, a group as defined under “group” (within the meaning of Section 13(d13(d)(3) of the Securities Exchange Act of 1934) (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement“13D Group”) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any voting securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementMacroGenics;
(g) make any disclosure14.1.4 otherwise act, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, whether alone or in concert with others, representation onto seek to propose to MacroGenics any merger, business combination, restructuring, recapitalization or nominate any candidate tosimilar transaction with respect to or with MacroGenics or otherwise act, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, whether alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consentcontrol, (vi) conduct a referendum change the management or Board of the Company Directors of MacroGenics, or FSFR stockholders or (vii) make a request for nominate any stockholders list or any other books and records in Sellers’ capacity person as a Company or FSFR stockholderdirector of MacroGenics who is not nominated by the then incumbent directors;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) 14.1.5 enter into any discussion, negotiations, arrangements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection understandings with any of the foregoingthird party with respect to, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
or Notwithstanding the foregoing, nothing in this Agreement shall limit Gilead’s ability to (ox) take any action challenging the validity or enforceability of this Agreement, inquire or make a request, orally or in any way advance any request or proposal that writing, to the Company, FSFR, the Company Board chief executive officer or the FSFR Board amend, modify chairman of the board of directors of MacroGenics with respect to any amendment or waive waiver of any provision of this AgreementSection 14.1 or (y) make or submit to the chief executive officer or the chairman of the board of directors of MacroGenics a bona fide non-public proposal so long as such action would not reasonably be expected to require MacroGenics to make a public announcement relating thereto. If at any time during the Standstill Period, Gilead or, to its knowledge, any of its representatives are approached by any Third Party concerning Gilead’s participation in a transaction of the type referred to in Sections 14.1.1 through 14.1.5, Gilead shall, or shall use commercially reasonable efforts to cause its representative (as applicable) to, promptly inform such Third Party that Gilead is bound by certain confidentiality obligations in respect of MacroGenics.
Appears in 2 contracts
Sources: License Agreement (Macrogenics Inc), License Agreement (Macrogenics Inc)
Standstill. Effective from From the date of this Agreement and continuing until to the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Expiration Date (the “Standstill Restricted Period”), the ▇▇▇▇▇ Group shall not, and shall cause its Affiliates and its and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on its or their behalf, as applicable, not to, in any way, directly or indirectly (in each case except to the extent as expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:):
(a) solicit, engage in any “solicitation” (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) of proxies or knowingly encourage consents with respect to the election or removal of directors or any other matter or proposal or in any way engage in any solicitation of, any proxies referendum (whether binding or consents otherwise) of stockholders of the Company or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents or in any such referendum other than at the Board’s direction, or encourage, assist, advise or influence any other person or assist any third party in so encouraging, assisting, advising or influencing any person with respect to the giving or withholding of any proxy, consent or other authority in any such solicitation of proxies, consents or other authority or any such referendum other than consistent with the Board’s recommendation in connection with such matter, or publicly disclose how it intends to vote or act on any such matter; provided, however, that the ▇▇▇▇▇ Group may publicly disclose how it intends to vote (i) in any such proxy solicitation or referendum if and solely to the extent required by applicable subpoena, legal process, or other legal requirement (except for such requirement that arises as a result of the actions of the ▇▇▇▇▇ Group otherwise in violation of this Section 3) or (ii) with respect to any Extraordinary Transaction (as defined below) that has already been publicly announced by or on behalf of the Company;
(b) form or join or in Regulation 14A under any way participate in any “group” as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any Voting Securities, other action that would interfere than solely with the ability of Sellers to vote in accordance with this Agreement▇▇▇▇▇ Group and its Affiliates and Associates;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hc) effect or seek to effect, offer or propose to effect, cause or participate in, whether alone or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate inconcert with others, any tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR Company or either a majority of their investment advisors, its securities or any a majority of their subsidiaries or joint ventures or any of their respective securities its assets (each, an “Extraordinary Transaction”)) (it being understood that the foregoing shall not restrict the ▇▇▇▇▇ Group from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or make from participating in any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any Extraordinary Transaction or this Agreement such transaction that is inconsistent with has been approved by 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 provision of this Agreement Board); or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekaction, alone or in concert with others, representation onin support of or make any proposal or request that constitutes: (i) advising, controlling, changing or nominate any candidate to, influencing the Company Board or management of the FSFR Company, including any plans or proposals to change the number or term of directors or (except as provided in Section 2 above) to fill any vacancies on the Board, (ii) any material change in the capitalization or dividend policy of the Company, or (iii) seek any other material change in the removal of Company’s executive management, business, corporate strategy or corporate structure;
(d) enter into a voting trust, arrangement or agreement or subject any member Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of the ▇▇▇▇▇ Group, with respect to Voting Securities now or hereafter owned by it;
(e) institute any litigation against the Company, its directors or its officers, make any “books and records” demands against the Company Board or the FSFR Boardmake application or demand to a court or other person for an inspection, (iv) seek, alone investigation or in concert with others, or support any Third Party in seeking, to replace the investment advisor examination of the Company or the investment advisor of FSFR, its subsidiaries or Affiliates (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek whether pursuant to act by written consent, (vi) conduct a referendum Section 220 of the Company Delaware General Corporation Law or FSFR stockholders or (viiotherwise) make a request for any stockholders list or any other books and records in Sellers’ capacity than as a Company or FSFR stockholder;
(j) purchase or cause may be necessary to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by enforce the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) terms of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(mf) enter into or engage in maintain any short sale or purchaseeconomic, sale or grant of any optioncompensatory, warrant, derivative, convertible security, stock appreciation right pecuniary or other similar right (including, without limitation, arrangements with any put director or call option or swap transaction) with respect to or having any measurement relating to any securities nominee for director of the CompaniesCompany;
(ng) enter into any discussions, negotiations, arrangements, understanding agreements or agreements (whether written or oral) with, or advise, finance, assist, seek understandings with any third party with respect to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make advise, assist, intentionally encourage or seek to persuade any investment in or enter into third party to take any arrangement action with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(h) seek to call, or request the call of, a special meeting of the stockholders or seek to make, or make, a stockholder proposal at any meeting of the stockholders of the Company;
(i) make any request or submit any proposal to amend or waive any of the terms of this Agreement, in each case, which would reasonably be expected to result in a public announcement or public disclosure of such request or proposal; or
(oj) take other than in sale transactions on the NYSE or through a broker or dealer where the identity of the purchaser is not known, sell or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, Common Stock or any derivatives relating to Common Stock to any third party that either (i) has filed a Schedule 13D with respect to the Company or (ii) has run (or publicly announced an intention to run) a proxy contest or consent solicitation with respect to another company in the past three years (but, in the case of this clause (ii), only if the ▇▇▇▇▇ Group knows, after reasonable inquiry, that the third party has, or will as a result of the transaction have, beneficial ownership of more than 5% of the Common Stock). The ▇▇▇▇▇ Group, jointly and severally, agrees to be responsible for any action challenging or omission by any of the validity or enforceability following that would constitute a breach of this AgreementAgreement if directly or indirectly taken or omitted by the ▇▇▇▇▇ Group: any consultants, agents, representatives, attorneys and advisors of the ▇▇▇▇▇ Group, to the extent such persons are directly or make or indirectly acting on behalf of the ▇▇▇▇▇ Group. The restrictions set forth above in this Section 3 shall not apply for the duration of any way advance any request or proposal period that the CompanyCompany is not in material compliance with its obligations under Section 2, FSFR, the Company Board Section 6 or the FSFR Board amend, modify or waive any provision Section 16 of this Agreement.
Appears in 2 contracts
Sources: Voting Agreement (Radix Partners LLC), Voting Agreement (Capital Senior Living Corp)
Standstill. Effective from Neither IITRI, any of its Affiliates, nor any holder of Seller Warrants or Seller Shares (each, for the date purposes of this Agreement and continuing until the later Section 6, a "Restricted Holder") shall, directly or indirectly, at any time:
(a) purchase or otherwise acquire, or propose or offer to purchase or acquire, any shares of, or security of the certification Company convertible into, Common Stock or any right, subscription, warrant, call, option or other agreement to purchase or otherwise receive any shares of votes for the Company 2017 Annual Meeting of Stockholders Common Stock, whether by tender offer, market purchase, privately negotiated purchase, merger or the certification of votes for the FSFR otherwise (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”an "Acquisition"), except to the extent expressly permitted by the terms of this Agreement, none (i) if immediately following such Acquisition such Restricted Holder would Beneficially Own less than 5% of the Sellers shalloutstanding Voting Securities of the Company; (ii) in connection with a merger, and Sellers shall cause their respective controlled Affiliates not toconsolidation, or any transaction or series of transactions which results in the stockholder holding a majority of the outstanding Voting Securities of the Company immediately prior to such transaction(s) no longer holding such Voting Securities of the Company immediately following such transaction(s) (a "Business Combination"), in each case that has been approved of the Board of Directors of the Company; (iii) to purchase Shares issuable pursuant to an Exercise Notice or a Cashless Exercise Notice (in each case, as defined in the Warrants) given in respect of the Warrants, or to purchase shares of Common Stock or any securities convertible or exercisable into Common Stock, or other rights to acquire Common Stock pursuant to Section 12 of the Warrants; or (iv) to acquire Common Stock pursuant to any pro rata stock dividend, stock split, exchange, reclassification or other distribution;
(b) make, or in any way participate, directly or indirectly, in any manner, alone or in concert with others:
"solicitation" of "proxies" (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined or used 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”1934 Act) or any securities convertible or exchangeable into or exercisable for any such securities (collectivelyto vote, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at public or private statement to any annual third ▇▇▇▇▇ ▇▇ to how such Restricted Holder intends to vote, or special meeting of the stockholders of the Company or FSFR, whether pursuant seek to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct advise or influence any person with respect to the voting of, any shares of Common Stock, or become a "participant" in any "election contest" (as such terms are used or defined in Regulation 14A of the matters covered by this Section 3.1 or with respect 1934 Act) relating to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Rights Agreement (Alion Science & Technology Corp), Rights Agreement (Alion Science & Technology Corp)
Standstill. Effective from (a) The Stock Purchase Agreement, dated as of July 1, 1995, between the Company and Pharmacia & Upjohn S.p.A. is hereby amended ab initio, effective as of the date thereof, to delete therefrom Section 5.5 thereof in its entirety.
(b) Prior to the earliest of this Agreement and continuing until (i) the later occurrence of the certification an Event of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Default (as defined below) 2017 Annual Meeting of Stockholders (in the “Standstill Period”Credit Agreement), except to (ii) the extent expressly permitted commencement of a tender offer by any Person, other than Pharmacia & Upjohn, Inc. or any of its wholly owned subsidiaries, for shares of Common Stock, and (iii) July 1, 2000, unless specifically requested in advance by the terms Company's Board of this AgreementDirectors, none neither the Purchaser nor any of the Sellers shallPurchasers' Affiliates will, and Sellers shall cause their respective controlled the Purchaser and its Affiliates will not assist or encourage others (including by providing financing) to, directly or indirectly, in any manner, alone acquire or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attemptoffer, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actionsbut not limited to beneficial ownership (as defined in Rule 13d-3 under the 1934 Act), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement discussions, negotiations, arrangements or understandings with any other person that engages, or offers or proposes Person with respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
provided that this Section 10.02(b) shall not prohibit (oi) take any action challenging the validity or enforceability acquisition by the Purchaser and its Affiliates of a number of shares of Common Stock which, taken together with the number of shares of Common Stock held by the Purchaser and its Affiliates as of the date of such acquisition, does not exceed 25% of the aggregate number of outstanding shares of Common Stock as of the date of this acquisition, (ii) the acquisition by the Purchaser or its Affiliates of shares of Common Stock pursuant to Section 2.03 of the Credit Agreement or upon exercise of any Warrants (as defined in the Credit Agreement), or make (iii) the acquisition by the Purchaser or its Affiliates of promissory notes pursuant to the Credit Agreement or any other securities pursuant to the Credit Documents (as defined in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Credit Agreement).
Appears in 2 contracts
Sources: Equity Investment Agreement (Miravant Medical Technologies), Equity Investment Agreement (Pharmacia & Upjohn Inc)
Standstill. Effective (a) Except for actions expressly permitted by this Agreement, each of the Holders agrees that (i) from the date of this Agreement and continuing until the later Special Meeting is permanently adjourned and (ii) if ▇▇. ▇▇▇▇▇▇▇▇▇▇ is elected as a director at the Special Meeting, until the earlier of (x) the 2009 Annual Meeting or (y) such earlier time as ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ is no longer a director of the certification of votes Company for a reason other than his voluntary resignation from the Company 2017 Annual Meeting of Stockholders or Board, without the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none prior written consent of the Sellers shallBoard specifically expressed in a written resolution adopted by a majority vote of the entire Board, neither such Holder nor any of its Affiliates or Associates under its control or direction will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others:
: (aA) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents to vote any voting securities of the Company in opposition to the recommendations of the Board or become a participant in any election contest with respect to the Company; (B) otherwise take any action to obtain representation on the Board; (C) take any action that is designed to require the Company to make a public announcement regarding its strategic alternatives; (D) enter into any agreements with any third party with respect to any of the foregoing; or (E) make any public announcement with respect to any of the foregoing, except as advised by counsel to comply with applicable law and regulations.
(b) As used in this Agreement, the terms “participantAffiliate” and “Associate” shall have the respective meanings set forth in a Rule 12b-2 promulgated by the Securities and Exchange Commission (the “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A SEC”) 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 to call a special meeting of stockholders or ); the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 SEC under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of ; and the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a terms “contested solicitationperson” or take other action for the election “persons” shall mean any individual, corporation (including not-for-profit), general or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a limited partnership, limited partnershipliability company, syndicate joint venture, estate, trust, association, organization or other entity of any kind or nature; and “group, including, without limitation, a group ” shall have the meaning as defined set forth in Rule 13d-5 promulgated by the SEC under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementAct.
Appears in 2 contracts
Sources: Shareholder Agreement (Cryo Cell International Inc), Shareholder Agreement (Filipowski Andrew J)
Standstill. Effective from During the period beginning on the date of this Agreement and continuing until ending on the later earlier of (x) the certification of votes for day following the Company’s 2016 annual meeting (including any adjournment or postponement or any special meeting held in lieu thereof) or (y) 14 days after the Company 2017 Annual Meeting receives notice from Casablanca of Stockholders or a material breach by the certification Company of votes for any obligation under this Agreement which has not been cured; provided that, if such material breach cannot be cured, the FSFR (as defined below) 2017 Annual Meeting of Stockholders date on which the Company receives such notice (the date on which such periods ends, the “Standstill PeriodTermination Date”), except to the extent expressly permitted by the terms of this AgreementCasablanca shall not, none of the Sellers shalldirectly or indirectly, and Sellers Casablanca shall cause their respective controlled Affiliates each Affiliate of Casablanca not to, directly or indirectly, indirectly (it being understood and agreed that the following restrictions shall not apply to ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ acting solely in any manner, alone or in concert his capacity as a director of the Company consistent with others:his fiduciary duties to the Company):
(a) solicitsolicit proxies or written consents of shareholders or conduct any other type of referendum (binding or non-binding) with respect to, or knowingly encourage or in any way engage in any solicitation from the holders of, any proxies or consents the Voting Securities (as defined below), or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in Regulation Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies in or consents assist any person or entity not a party to this Agreement (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating “Third Party”) in any “withholdsolicitation” of any proxy, consent or similar campaign), in each case, with respect other authority (as such terms are defined under the Exchange Act) to securities vote any shares of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Voting Securities;
(b) make encourage, advise or influence any proposal for consideration by stockholders at other person or assist any annual Third Party in so encouraging, assisting or special meeting influencing any person with respect to the giving or withholding of the stockholders any proxy, consent or other authority to vote or in conducting any type of the Company referendum (binding or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwisenon-binding);
(c) knowingly advise, encourage, support, instruct form or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, including a group “group” as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”)Act, with respect to the Voting Securities (for the avoidance of doubt, excluding any securities group composed solely of the Companies Casablanca and its Affiliates) or take otherwise support or participate in any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal effort by a Third Party with respect to the FSC Board of Directors matters set forth in clauses (the “Company Board”), the Company investment advisor a) or the terms and conditions (f) herein;
(d) present at any annual meeting or any special meeting of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor shareholders or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any through action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone consent any proposal for consideration for action by shareholders or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or propose any nominee for election to the FSFR Board or seek representation on the Board, except as set forth in this Agreement;
(ive) seekgrant any proxy, alone consent or other authority to vote with respect to any matters (other than to the named proxies included in concert with others, the Company’s proxy card for any annual meeting or support special meeting of shareholders) or deposit any Third Party in seeking, to replace the investment advisor Voting Securities of the Company in a voting trust or the investment advisor subject them to a voting agreement or other arrangement of FSFRsimilar effect with respect to any annual meeting except as provided in Section 2 below, (v) solicit consents from the Company special meeting of shareholders or FSFR stockholders or otherwise act or seek to act action by written consentconsent (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(vi) conduct a referendum of the Company or FSFR stockholders or (viif) make a any request for any stockholders list stocklist materials or any other books and records in Sellers’ capacity as a of the Company whether pursuant to Chapter 1701.37 of the Ohio Revised Code (the Ohio General Corporation Law) or FSFR stockholderotherwise;
(jg) without the prior approval of the Board, separately or in conjunction with any other person or entity in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, propose (publicly, privately or to the Company) or participate in, effect or seek to effect, any tender offer or exchange offer, merger, acquisition, reorganization, restructuring, recapitalization or other business combination involving the Company or a material amount of the assets or businesses of the Company (collectively, an “Extraordinary Transaction”) or encourage, initiate or support any other Third Party in any such activity; provided, that Casablanca may participate in any tender offer or exchange offer by a Third Party, or a combination thereof, and may vote the Voting Securities beneficially owned by Casablanca, in its sole discretion, in respect of any Extraordinary Transaction;
(h) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership Beneficial Ownership of any securities issued by more than 20% of the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFRVoting Securities;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangementsagreements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, understandings with any Third Party with respect to take the matters set forth in this Section 1; or
(j) request, directly or indirectly, any action amendment or make any statement in connection with any waiver of the foregoing, or make any investment in or enter into any arrangement other than through non-public communications with any other person that engages, or offers or proposes to engage, in any the officers and directors of the foregoing, or otherwise take or cause Company that do not trigger any action or make any statement inconsistent with any public disclosure obligations on the part of the foregoing; or
(o) take any action challenging the validity Company or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementCasablanca.
Appears in 2 contracts
Sources: Director Nomination Agreement (Cliffs Natural Resources Inc.), Director Nomination Agreement (Casablanca Capital LP)
Standstill. Effective from During the date of this Agreement and continuing until Cooperation Period, without the later prior written consent of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Board, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallAlden shall not, and Sellers shall cause their respective controlled its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit(i) nominate, give notice of an intent to nominate, or knowingly recommend for nomination a person for election at any Stockholder Meeting at which directors of the Board are to be elected; (ii) initiate, encourage or in any way engage participate in any solicitation ofof proxies in respect of any election contest with respect to the Company’s directors; (iii) submit any stockholder proposal for consideration at, or bring any other business before, any proxies Stockholder Meeting; (iv) initiate, encourage or consents or become a “participant” participate in a “solicitation,” directly or indirectly, 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 to call a special meeting proxies in respect of stockholders any stockholder proposal for consideration at, or by encouraging bring any other business before, any Stockholder Meeting; (v) initiate, encourage or participating participate in any “withhold” or similar campaign), in each case, campaign with respect to any Stockholder Meeting or any solicitation of written consents of stockholders; or (vi) request, or initiate, encourage or participate in any request to call, a special meeting of the Company’s stockholders; provided, however, that from and after November 15, 2018, nothing in this Agreement shall prevent Alden or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting or any Shareholder Requested Special Meeting scheduled to be held following the Termination Date, so long as such actions do not create a public disclosure obligation for Alden or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Alden’s normal practices in the circumstances;
(b) (i) 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 voting securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “voting rights decoupled from the underlying voting securities of the Companies”Company; provided, however, that Alden and its Affiliates and Associates shall be permitted to acquire additional shares of Common Stock in accordance with Section 5(g);
; or (bii) make any proposal for consideration by stockholders at any annual knowingly sell, offer or special meeting of agree to sell through swap or hedging transactions or otherwise, the stockholders voting securities of the Company or FSFRany voting rights decoupled from the underlying voting securities held by Alden or its Affiliates or Associates to any filer of a Schedule 13D in respect of the Company or any stockholder of the Company who has an ownership interest of 5.0% or more of the then-outstanding shares of Common Stock at the time of such sale, whether pursuant to Rule 14a-8 under the Exchange Actoffer or agreement (except for Schedule 13G filers that are mutual funds, either such company’s constituent documents pension funds or otherwiseindex funds with no known history of activism);
(c) knowingly adviseform, encourage, support, instruct join or influence in any person way participate in any group with respect to any voting securities of the matters covered by this Section 3.1 Company in connection with any election or removal contest with respect to the voting Company’s directors or disposition any stockholder proposal or other business brought before any Stockholder Meeting; provided, however, that nothing herein shall limit the ability of an Affiliate of Alden to join Alden’s 13(d) “group” following the execution of this Agreement, so long as any securities such Affiliate agrees to be bound by the terms and conditions of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do sothis Agreement;
(d) agree, attempt, seek or propose to deposit any Company voting securities of the Companies in any voting trust or similar arrangement, or subject any Company voting securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation onto amend any provision of the Company’s charter or bylaws; provided, however, that nothing herein shall be deemed to restrict the ability of any Alden Designee to privately propose any changes he deems appropriate in accordance with his fiduciary duties as a director of the Company;
(f) demand an inspection of the Company’s books and records;
(g) (i) make any offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving Alden or its Affiliates or Associates and the Company, (ii) solicit a Third Party to make an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, disposition or other business combination involving the Company, or nominate any candidate topublicly encourage, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, initiate or support any Third Party in seekingmaking such an offer or proposal, or (iii) publicly comment on any Third Party proposal regarding any merger, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek by such Third Party prior to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholdersuch proposal becoming public;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(nh) enter into any negotiations, arrangements, understanding agreements or agreements (whether written or oral) withunderstandings with any Third Party with respect to the foregoing, or advise, finance, assist, encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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 respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement materially inconsistent with any of the foregoing; or
(oi) take any action challenging the validity or enforceability of this Section 3 or this Agreement, or publicly make or in any way advance publicly any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement. Nothing in this Section 3 shall be deemed to limit the ability of any Alden Designee to exercise his fiduciary duties under law solely in his capacity as a director of the Company and in a manner consistent with his obligations under this Agreement. Notwithstanding anything in this Section 3 to the contrary, in respect of any stockholder vote on a proposal of the Company in respect of any Equity Issuance (other than any Pro Rata Equity Issuance), Alden shall be permitted to issue a one-time statement in accordance with Rule 14a-1(l)(iv) under the Exchange Act as to how Alden intends to vote and the reasons therefor. Such press release shall not exceed three sentences and forty words and shall be subject to Section 7 (Mutual Non-Disparagement) hereof. For the avoidance of doubt, with the exception of the foregoing one-time statement, Alden shall be prohibited, publicly and privately, from soliciting any proxies or otherwise advocating against any proposal of the Company in respect of any Equity Issuance. In addition, as of the execution and delivery of this Agreement, Alden hereby withdraws any and all prior demands to inspect the Company’s books and records and waives in all respects compliance by the Company with any applicable notice, response or other provisions of the applicable statutes relating thereto.
Appears in 2 contracts
Sources: Cooperation Agreement (Alden Global Capital LLC), Cooperation Agreement (Freds Inc)
Standstill. Effective from (a) The Purchaser agrees that, during the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallit shall not, and Sellers shall cause their respective controlled each of its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:others take any of the following actions without the prior consent of the Company (acting through a resolution of the Company’s directors not including any SL Directors):
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Board of Directors or to approve any proposals submitted to a vote of the stockholders of the Company that have not been authorized and approved, or recommended for approval, by the Board of Directors, or become a “participant” in a any contested “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A or used under the Securities Exchange Act) for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of the Directors at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act of 1934or otherwise);
(ii) form, as amended (the “Exchange Act”) of proxies join, encourage, influence, advise or consents (including, without limitation, in any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating way participate in any “withholdgroup” or similar campaign), (as such term is defined in each case, Section 13(d)(3) of the Exchange Act) with any persons who are not its Affiliates with respect to any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4as expressly permitted by this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single “person” under Section 13(d) of the Exchange Act Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities that would result in the Purchaser (except together with its Affiliates), having Beneficial Ownership of more than 19.9% in the aggregate of the shares of the Company Common Stock outstanding at such participation related time (assuming all the Notes are converted and Warrants are exercised), excluding any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Company Common Stock (or the exercise thereof) to any SL Director as compensation for their membership on the Board of Directors; provided that nothing herein will require any Notes, Warrants or shares of Company Common Stock to be sold to the reasonable unwinding extent the Purchaser and its Affiliates, collectively, exceeds the ownership limit under this paragraph as the result of a share repurchase or any such group currently existing as other Company actions that reduces the number of outstanding shares of Company Common Stock. For purposes of this Section 4.18(a)(iii), no securities Beneficially Owned by a portfolio company of the date Purchaser or its Affiliates will be deemed to be Beneficially Owned by Purchaser or any of its Affiliates only so long as (x) such portfolio company is not an Affiliate of the Purchaser for purposes of this Agreement, (y) neither the Purchaser nor any of its Affiliates has encouraged, instructed, directed, supported, assisted or advised, or coordinated with, such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither the Purchaser or any of its Affiliates is a member of a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), that portfolio company with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or substantially all assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by the Purchaser or disclosure any of its Affiliates of any securities of the Company into any Third Party Tender/Exchange Offer (and any related conversion of Notes or exercise of Warrants to the extent required to effect such tender) or the vote by the Purchaser or any of its Affiliates of any voting securities of the Company with respect to any Extraordinary Transaction in accordance with the recommendation of the Board of Directors;
(v) (A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) seek representation on the Board of Directors, except as expressly set forth herein, (C) seek the removal of any member of the Board of Directors (other than a Purchaser Designee in accordance with Section 4.07), (D) solicit consents from stockholders or otherwise act or seek to act by written consent with respect to the Company, (E) conduct a referendum of stockholders of the Company or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(vi) take any action in support of or make any proposal or request that constitutes: (A) controlling or changing the Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, or (C) any other material change in the Company’s management, business or corporate structure (except pursuant to any action or transaction permitted by Section 4.18(a)(iv));
(vii) (A) 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, (B) 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 (C) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) [reserved];
(ix) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any Extraordinary Transaction of its securities or assets 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;; or
(ix) (i) call enter into any discussions, negotiations, agreements or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert understandings with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withforegoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with respect to any of the foregoing.
(b) The foregoing provisions of Section 4.18(a) shall not be deemed to prohibit (i) any action that may be taken by any Purchaser Designee acting solely as a director of the Company consistent with his fiduciary duties as a director of the Company if such action does not include or result in any public announcement or disclosure by such Purchaser Designee, the Purchaser or make any investment of its Affiliates, (ii) the Purchaser or any of its Affiliates or their respective directors, executive officers, partners, employees, managing members, advisors or agents (acting in such capacity) from communicating on a confidential basis with the Company’s directors, officers or enter advisors or (iii) the Purchaser or any of its Affiliates from (A) making a confidential proposal to the Company or the Board of Directors for a negotiated transaction with the Company involving a Change in Control, (B) pursuing and entering into any arrangement such transaction with the Company and (C) taking any other person that engages, or offers or proposes to engage, actions in any furtherance of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or.
(oc) take any action challenging Notwithstanding the validity foregoing provisions of Section 4.18(a) or enforceability anything in this Agreement to the contrary, the Purchaser and its Affiliates shall not be restricted from (i) acquiring securities with the prior written consent of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR(ii) acquiring securities pursuant to Section 4.16, (iii) participating in rights or securities offerings conducted by the Company, (iv) receiving stock dividends, PIK interest or similar distributions and payments made by the Company, (v) tendering Company Common Stock as permitted by Section 4.02 or in a Third Party Tender/Exchange Offer after the Restricted Period (or effecting any Permitted Loan or Permitted Debt Financing Transaction under Section 4.02), (vi) disposing of Company Common Stock by operation of a statutory amalgamation, statutory arrangement or other statutory procedure involving the Company Board or (vii) any conversion of the FSFR Board amendNotes, modify exercise of Warrants or waive any provision other securities acquired not in contravention of this AgreementSection 4.18.
Appears in 2 contracts
Sources: Investment Agreement (Zuora Inc), Investment Agreement (Zuora Inc)
Standstill. Effective from The PL Capital Parties each agree that, for so long as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (or, in the date of this Agreement and continuing until the later event of the certification death, disability or resignation of votes for ▇▇. ▇▇▇▇▇▇▇, a substitute nominee of the Company 2017 Annual Meeting PL Capital Parties, whose substitution shall be subject to the approval of Stockholders the Ameriana Bancorp Board of Directors in its sole discretion, which approval shall not be unreasonably withheld or delayed) remains a director of Ameriana Bancorp or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Bank (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, they and Sellers shall cause their respective controlled Affiliates not to, directly affiliates or indirectly, in any manner, alone or in concert with others:
associates (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies will not (and they will not assist or consents (includingencourage others to), directly or indirectly, in any manner, without limitationprior written approval of the Board of Directors of Ameriana Bancorp:
(i) acquire, offer to acquire, solicit an offer to sell or agree to acquire directly or indirectly, alone or in concert with others, by purchase, gift or otherwise, any solicitation direct or indirect beneficial ownership (within the meaning of consents that seeks to call a special meeting of stockholders Rule 13d-3 under the Exchange Act) or by encouraging any direct or participating indirect interest in any securities or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for (collectively, an “withhold” or similar campaignAcquisition”), any securities of Ameriana Bancorp, such that as a result of such of such Acquisition, the PL Capital Parties would maintain beneficial ownership in each caseexcess of 9.99% of the outstanding shares of Ameriana Bancorp common stock;
(ii) make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or seek to advise or influence in any manner whatsoever any person with respect to the voting of any voting securities of Ameriana Bancorp;
(iii) form, join or in any way participate in a “group” within the Company meaning of Section 13(d)(3) of the Exchange Act (other than a group involving solely the PL Capital Parties) with respect to any voting securities of Ameriana Bancorp (for the benefit of clarification and the avoidance of doubt, this provision shall not prohibit changes in the membership of the group involving the PL Capital Parties as long as any additional member(s) acknowledges and agrees to be bound by the terms of this Agreement);
(iv) acquire, offer to acquire or Fifth Street Senior Floating Rate Corp. agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (“FSFR”a) any of the assets, tangible and intangible, of Ameriana Bancorp or (b) direct or indirect rights, warrants or options to acquire any assets of Ameriana Bancorp;
(v) arrange, or in any way participate, directly or indirectly, in any financing (except for margin loan financing for shares beneficially owned) for the purchase of any securities or securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities or assets of the Companies”)Ameriana Bancorp;
(bvi) make any proposal for consideration by stockholders at any annual otherwise act, alone or special meeting of the stockholders of the Company in concert with others, to seek to offer to Ameriana Bancorp or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of its stockholders any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalizationrestructuring, reorganization, sale recapitalization or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase similar transaction to or other extraordinary transaction involving the Company, FSFR with Ameriana Bancorp or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) otherwise seek, alone or in concert with others, representation onto control or change the management, Board of Directors or policies of Ameriana Bancorp or nominate any candidate to, person as a director of Ameriana Bancorp who is not nominated by the Company then incumbent directors (provided that if there is a vacancy on the Ameriana Bancorp Board of Directors the PL Capital Parties may submit suggestions on a confidential basis to the Ameriana Bancorp Board of Directors or the FSFR Board, (iii) seek the removal of any member Nominating and Governance Committee of the Company Ameriana Bancorp Board or of Directors for nominees to the FSFR Board, (iv) seek, alone or in concert with othersBoard of Directors pursuant to the nomination policy adopted by the Board of Directors), or support propose any Third Party in seeking, matter to replace be voted upon by the investment advisor stockholders of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or Ameriana Bancorp; or
(vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause announce an intention to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRdo, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement or understanding with any other person that engagesothers to do, or offers or proposes to engage, in any of the foregoingactions restricted or prohibited under clauses (i) through (vi) of this Paragraph 2, or publicly announce or disclose any request to be excused from any of the foregoing obligations of this Paragraph 2. At any Ameriana Bancorp annual meeting of stockholders during the Standstill Period, the PL Capital Parties agree (1) to vote all shares of Ameriana Bancorp they or any of them beneficially own in favor of the nominees for election or reelection as director of Ameriana Bancorp selected by the Board of Directors of Ameriana Bancorp and agree otherwise take to support such director candidates, and (2) with respect to any other proposal submitted by any Ameriana Bancorp stockholder to a vote of the Ameriana Bancorp stockholders, to vote all of the Ameriana Bancorp shares they beneficially own in accordance with the recommendation of the Ameriana Bancorp Board of Directors with respect to any such stockholder proposal. Notwithstanding anything in this Agreement to the contrary, nothing herein will be construed to limit or cause affect: (1) any action or make any statement inconsistent with any inaction by ▇▇. ▇▇▇▇▇▇▇ in his capacity as a member of Ameriana Bancorp’s Board of Directors or the Bank’s Board of Directors, provided he acts in good faith in the discharge of his fiduciary duties as a Board member; or (2) the ability of the foregoing; or
(o) take any action challenging PL Capital Parties to engage in discussions relating to the validity or enforceability topics listed in Paragraph 2 of this AgreementAgreement directly with the President and Chief Executive Officer of Ameriana Bancorp, or make or in any way advance any request or proposal that the Companyupon invitation, FSFR, the Company Board with other members of management or the FSFR board of directors of Ameriana Bancorp. The Standstill Period shall terminate following the 2014 annual meeting of stockholders if: (1) ▇▇. ▇▇▇▇▇▇▇ resigns as a member of the Board amendof Directors of Ameriana Bancorp; or (2) at the option of Ameriana Bancorp, modify or waive any provision if the beneficial ownership of this Agreementthe PL Capital Parties decreases below 5% of the outstanding shares of Ameriana Bancorp common stock.
Appears in 2 contracts
Sources: Standstill Agreement (PL Capital, LLC), Standstill Agreement (Ameriana Bancorp)
Standstill. Effective from From and after the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Closing, except to the extent expressly permitted as provided in Section 3.3, or unless otherwise approved, or an exemption or waiver is otherwise approved, by the terms of this AgreementUnaffiliated Directors, none of the Sellers shalleach A/N Party and each ▇▇▇ Party shall not, and Sellers shall use reasonable best efforts to cause their respective controlled Affiliates its Representatives not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies “solicitation” of “proxies” (as such terms are defined under Regulation 14A under Exchange Act) or consents or relating to the election of directors with respect to the Company, become a “participant” in a “solicitation,” directly or indirectly, (as such terms are term is defined in under Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, in any solicitation seeking to elect directors not nominated by the Board of consents that seeks Directors, or agree or announce an intention to call vote with any Person undertaking a special meeting “solicitation”, or seek to advise or influence any Person or 13D Group with respect to the voting of stockholders or by encouraging or participating in any “withhold” or similar campaign)Voting Securities, in each case, with respect thereto, other than (subject to securities Section 3.4) with respect to the election of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Investor Designees;
(b) make deposit any proposal Voting Securities in any voting trust or similar arrangement that would prevent or materially interfere with the Investor Party’s right or ability to satisfy its obligations under this Agreement;
(c) propose any matter for consideration by submission to a vote of stockholders at any annual of the Company or special call or seek to call a meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soCompany;
(d) agree, attempt, seek or propose to deposit grant any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement proxies with respect to any Voting Securities of the voting thereof, except in accordance with Section 3.4Company to any Person (other than to a designated representative of the Company pursuant to a proxy statement of the Company);
(e) form, join, knowingly seek encourage the formation of or encourage any person engage in discussions relating to submit nominations the formation of, or participate in furtherance of a “contested solicitation” or take other action for the election or removal of directors 13D Group with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement Voting Securities of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seekaction, alone or in concert with others, or support make any Third Party public statement not approved by the Board of Directors, in seekingeach case, to replace seek to control or influence the investment advisor management, Board of Directors or policies of the Company or any of its Subsidiaries other than, in each case, through participation on the investment advisor Board and the applicable committees pursuant to Sections 2.2 and 2.4 of FSFRthis Agreement, respectively;
(vg) solicit consents from offer or propose to acquire or agree to acquire (or request permission to do so), whether by joining or participating in a 13D Group or otherwise, Beneficial Ownership of Voting Securities in excess of the Company Cap, except in accordance with Section 3.1;
(h) enter into discussions, negotiations, arrangements or FSFR stockholders understandings with, or otherwise act advise, assist or knowingly encourage any Person with respect to any of the actions prohibited by Section 3.1 or this Section 3.2;
(i) publicly seek or publicly request permission to do any of the foregoing, publicly request to amend or waive any provision of this Section 3.2 (including this clause (i)), or publicly make or seek permission to act by written consent, (vi) conduct a referendum make any public announcement with respect to any of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderforegoing;
(j) purchase enter into any agreement, arrangement or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims understanding with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(ok) take any action challenging contest the validity or enforceability of the agreements contained in Section 3.1 or this Section 3.2 or seek a release of the restrictions contained in Section 3.1 or this Section 3.2 (whether by legal action or otherwise), other than in accordance with this Agreement; provided, however, that nothing contained in this Section 3.2 shall limit, restrict or make prohibit any non-public discussions with or in any way advance any request communications or proposal that the Company, FSFR, the Company Board proposals to management or the FSFR Board amendby the Investor Party, modify its controlled Affiliates or waive Representatives relating to any provision of this Agreementthe foregoing.
Appears in 2 contracts
Sources: Transaction Agreement (Cco Holdings LLC), Transaction Agreement (Cco Holdings LLC)
Standstill. Effective from (a) During the date of this Agreement period commencing on the Closing and continuing until ending on the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (Standstill Termination Date, as defined below) 2017 Annual Meeting , provided that the Company is not in breach of Stockholders its obligations under this Agreement (the “Standstill Period”including Section 1 hereof), except to the extent expressly permitted by the terms of this Agreement, none each of the Sellers shallPurchaser Parties (so long as such Purchaser Party is an Affiliate of the beneficial owner of the Company securities issued under the Purchase Agreement or the Exchange Agreement) shall not, and Sellers shall cause their respective its controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies hostile or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, takeover activities with respect to the Company (including by means of a tender offer or soliciting proxies or written consents, other than as recommended by the Board);
(ii) acquire or propose to acquire beneficial ownership of additional Common Stock (other than the Common Stock issuable upon the closing of the transactions contemplated by the Exchange Agreement) or other Company equity securities; or
(iii) acquire or propose to acquire any other equity securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “equity securities of any Affiliates of the Companies”);Company.
(b) make any proposal for consideration by stockholders at any annual or special meeting Specifically, but without limiting Section 3(a), during the period commencing on the Closing and ending on the Standstill Termination Date, without the prior written consent of the stockholders Company, each of the Purchaser Parties shall not, and shall cause its controlled Affiliates not to, directly or indirectly:
(i) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination, partnership, joint venture, acquisition or similar transaction involving the Company or FSFRany of its Affiliates or their properties, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseexcept as expressly permitted hereby;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fii) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any voting securities of the Companies Company or take any of its Affiliates with anyone other action that would interfere with than the ability of Sellers to vote in accordance Purchaser Parties or the Purchaser’s Affiliates;
(iii) publicly disclose any intent, plan or arrangement inconsistent with this Agreement;; or
(giv) make any disclosureadvise, communication, announcement assist or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent encourage others in connection with the above.
(c) Notwithstanding the foregoing provisions of this Agreement;
(h) effect or seek to effectSection 3, offer or propose to effectthe foregoing provisions shall not, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;and are not intended to:
(i) (i) call prohibit any Purchaser Party or seek to call or request the calling of any meeting of stockholders at either the Company or FSFRits controlled Affiliates from privately communicating with, including by written consentmaking any offer or proposal to, the Board;
(ii) seekrestrict in any manner how any Purchaser Party or its controlled Affiliates vote their Common Stock or other Company securities, alone or except as provided in concert with others, representation on, or nominate Section 2;
(iii) restrict the manner in which any candidate to, Purchaser Designated Director may (A) vote on any matter submitted to the Company Board or the FSFR BoardStockholders, (iiiB) seek participate in deliberations or discussions of the removal of any Board (including making suggestions or raising issues to the Board) in his or her capacity as a member of the Company Board, or (C) take actions required by his or her exercise of legal duties and obligations as a member of the Board or refrain from taking any action prohibited by his or her legal duties and obligations as a member of the FSFR Board, ;
(iv) seek, alone or in concert with others, or support restrict any Third Purchaser Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of its Permitted Transferees from selling or transferring any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect Company securities to any proceeding initiated by, other Purchaser Party or on behalf of, a party to this Agreement its Permitted Transferees or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant successor of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third such Purchaser Party to take any action or make any statement 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 engagethat, in any of such case, agrees to be bound by the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingprovisions contained in this Agreement; or
(ov) take any action challenging restrict the validity or enforceability preemptive rights provided to the Purchaser pursuant to Section 4.13 of this the Exchange Agreement, or make or in any way advance any request or proposal that the Company, FSFR, exercise thereof by the Company Board Purchaser or the FSFR Board amend, modify purchase or waive acquisition of any provision of this AgreementCompany securities by the Purchaser pursuant thereto.
Appears in 2 contracts
Sources: Board Representation and Standstill Agreement (LSB Industries Inc), Board Representation and Standstill Agreement (LSB Funding LLC)
Standstill. Effective from So long as the date Company has complied and is complying with its obligations set forth in this Agreement, during the Standstill Period, the Osmium Group and its Affiliates, will not, without the prior written consent of the Company or its Board:
(a) acquire, offer, seek or propose to acquire, or agree to acquire, directly or indirectly (including acquiring beneficial ownership as defined in Rule 13d-3 under the Exchange Act), by purchase or otherwise, any Voting Stock of the Company or direct or indirect rights to acquire any Voting Stock of the Company, or any assets of the Company or any Subsidiary or division of the Company, provided, however, that the Osmium Group may acquire in one or more transactions an aggregate number of shares of Voting Stock that when combined with all other holdings equals but does not exceed the Permitted Amount, and provided further, that any shares of Voting Stock held by the Independent Designee shall not be aggregated with the holdings of the Osmium Group solely as a result of the Company and the Osmium Group entering into this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders operation hereof;
(b) make, or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toin any way participate, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” to vote (as such terms are defined used in Regulation 14A under the Securities Exchange Act rules of 1934, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignSEC), in each case, or seek to advise or influence any person or entity with respect to securities the voting of any Voting Stock of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseCompany;
(c) knowingly advise, encourage, support, instruct or influence make any person public announcement with respect to any to, or submit a proposal for or offer of the matters covered by this Section 3.1 (with or with respect without conditions) (including to the voting or disposition of Board), any securities of the Companies at any annual or special meeting of stockholders of extraordinary transaction involving the Company or FSFR, except in accordance with Section 3.4, any of its securities or seek to do soassets;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or 13D Group (other group, including, without limitation, a group as defined under Section 13(dthan the Osmium Group) in connection with any of the Exchange Act foregoing (it being understood that the “Independent Designee” shall not be deemed to be part of the Osmium Group solely as a result of the Company and the Osmium Group entering into this Agreement and the operation hereof);
(e) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written consent any proposal for consideration for action by stockholders or (except such participation related to the reasonable unwinding of any such group currently existing as of the date of explicitly permitted by this Agreement) with propose any nominee for election to the Board or seek the removal of any member of the Board;
(f) make, or cause to be made, by press release or similar public statement to the press or media, or in an SEC filing, any statement or announcement that disparages the Company, its officers or its directors or any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities has served as an officer or director of the Companies Company in the past (and the Company shall not make, or take cause to be made, by press release or similar public statement, including to the press or media or in an SEC filing, any other action statement or announcement that would interfere with disparages any member of the ability Osmium Group, the officers, directors, partners or employees of Sellers to vote any member of the Osmium Group, or any person who has served as an officer, director, partner or employee of any member of the Osmium Group in accordance with this Agreementthe past);
(g) make institute, solicit, assist or join, as a party, any disclosurelitigation, communication, announcement arbitration or statement regarding any intent, purpose, plan other proceeding against or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either involving the Company or FSFR, any of its current or with respect former directors or officers (including derivative actions) other than to this Agreement, that is inconsistent with enforce the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving request the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its Representatives, directly or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seekingindirectly, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify amend or waive any provision of this AgreementSection 4.1 in a manner that would require public disclosure; or
(i) direct or instruct any of their respective Subsidiaries, Representatives or Affiliates to take any such action.
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Osmium Partners, LLC), Nomination and Standstill Agreement (Vitacost.com, Inc.)
Standstill. Effective Subject to the continued compliance of the Company with the terms of this Agreement and the Registration Rights Agreement, so long as any obligations of the Company remain pursuant to this Agreement or the Registration Rights Agreement, until the later to occur of the expiration of (i) a period of 12 months from the date of this Agreement and continuing until or (ii) the later permanent waiver effected in compliance with Section 10.5 hereof, following the resignation or removal of the certification Investor's designee from the Board of votes for Directors, of the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this AgreementInvestors' rights under Section 4.1 and 4.2 hereof, none of the Sellers shallInvestors will, and Sellers shall cause their respective controlled Affiliates not towithout the prior written consent of the Company's Board of Directors:
(a) make, or in any way participate, directly or indirectly, in any mannersolicitation of proxies or consents (as such terms are used in the rules of the SEC), or seek to advise or influence any person or entity, with respect to the voting of any voting securities of the Company;
(b) initiate or propose any stockholder proposal with respect to the Company as described in Rule 14a-8 under the Securities Exchange Act;
(c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any Subsidiary or division thereof or any of their securities or assets (it being acknowledged that informal discussions with the Board of Directors shall not be a breach of this provision);
(d) otherwise act alone or in concert with others:
(a) solicit, to seek to control or knowingly encourage influence the management, Board of Directors or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities policies of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectivelyprovided, “securities of however, that nothing herein shall restrict the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether Investors from exercising their rights pursuant to Rule 14a-8 Section 4.1 hereof and the rights of their designee on the Board of Directors under applicable law and the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any Company's Certificate of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;Incorporation and By-laws); or
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other "group, including, without limitation, a group " as defined under Section 13(d) of in the Securities Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withAct, or advise, finance, assist, seek to knowingly persuade assist or encourage, encourage any Third Party to take any action or make any statement other person in connection with any of the foregoing, . Each Investor shall promptly advise the Company of any inquiry or make any investment in or enter into any arrangement proposal made to such Investor with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Purchase Agreement (Penril Datacomm Networks Inc), Stock Purchase Agreement (Pequot General Partners)
Standstill. Effective from the date of this Agreement and continuing until (a) Until the later of (x) the certification three (3)-year anniversary of votes the Closing and (y) the date on which no nominee designated by the Majority Approved Holders serves on the Board and the Shareholders are no longer entitled to designate any directors for nomination pursuant to Section 1.1 (or have irrevocably waived their right), each Shareholder agrees that, without the Company 2017 Annual Meeting prior approval of Stockholders the Board, such Shareholder will not, directly or the certification indirectly:
(i) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others, by purchase or otherwise, two percent (2%) or more of votes for the FSFR any direct or indirect “beneficial ownership” (as defined belowin Rule 13d-3 and Rule 13d-5 under the Exchange Act) 2017 Annual Meeting of Stockholders Common Shares, any securities convertible or exchangeable into Common Shares or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, two percent (2%) or more of any voting securities of the “Standstill Period”Company, excluding any Common Shares or other securities acquired pursuant to a conversion of the Series A Preference Shares, bonus issue, dividend or distributions by the Company or otherwise acquired pursuant to the Transaction Documents (as defined in the Investment Agreement), except including pursuant to the extent expressly permitted by the terms Section 2.1 of this Agreement;
(ii) except as otherwise expressly provided in this Agreement, none make, or in any way participate in, directly or indirectly, alone or in concert with others, any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Sellers shallSEC promulgated pursuant to Section 14 of the Exchange Act), and Sellers shall cause their respective controlled whether subject to, or exempt from the federal proxy rules, seek to advise or influence in any manner whatsoever any Person with respect to the voting of any voting securities of the Company or seek to propose to influence, advise, change or control the management, board of directors, policies, affairs or strategy of the Company by way of any public communication or other communications to securityholders intended for such purpose;
(iii) except as otherwise expressly provided in this Agreement, form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company;
(iv) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its Affiliates not toor (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its Affiliates, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(v) arrange, or in any way participate, directly or indirectly, in any mannerfinancing for the purchase of two percent (2%) or more of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for two percent (2%) or more of any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its Affiliates;
(vi) otherwise act, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFRany of its shareholders any amalgamation, including any action that is intended tomerger, or is reasonably likely to result inbusiness combination, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combinationrestructuring, recapitalization, reorganization, sale or acquisition liquidation of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR to or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) otherwise seek, alone or in concert with others, representation onto control, change or nominate any candidate toinfluence the management, the Company Board board of directors or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or nominate any Person as a director who is not nominated by the investment advisor of FSFRthen incumbent directors, (v) solicit consents from or propose any matter to be voted upon by the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum shareholders of the Company or FSFR stockholders or Company;
(vii) make any request or proposal to amend, waive or terminate any provision of Section 2.3(a); provided, that this clause shall not prohibit a Shareholder from making a confidential request for any stockholders list or any other books and records in Sellers’ capacity as a Company proposal to the Chief Executive Officer or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership Chairman of any securities issued by the Board of the Company seeking an amendment or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale waiver of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to Section 2.3, which the Company may accept or reject in its sole discretion, so long as any proceeding initiated by, or on behalf of, such request is made in a party to this Agreement or FSFR against Sellers;manner that does not require public disclosure thereof; or
(mviii) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or that might result in the Company having to make any statement in connection with a public announcement regarding any of the foregoingmatters referred to in clauses (i) through (vii) of Section 2.3(a), or make any investment in announce an intention to do, or enter into any arrangement or understanding or discussions with any other person that engagesothers to do, or offers or proposes to engage, in any of the foregoingactions restricted or prohibited under clauses (i) through (vii) of Section 2.3(a).
(b) Nothing in Section 2.3(a) will limit the Shareholder’s ability to vote (subject to Section 1.2 above), Transfer (subject to Section 2.4 below), convert (subject to Section 7 of the Series A Certificate) or otherwise take exercise rights of its Common Shares or cause any action Series A Preference Shares or make any statement inconsistent with any the ability of the foregoing; or
(o) take any action challenging Shareholders’ director designee elected to the validity Board pursuant to Section 1.1 to vote or enforceability otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementBoard.
Appears in 2 contracts
Sources: Shareholders' Agreement (Signet Jewelers LTD), Investment Agreement (Signet Jewelers LTD)
Standstill. Effective (a) Each ▇▇▇▇▇ Group Member agrees that, without the prior written consent of the Company or as specifically permitted by Section 1.1, from the date of this Agreement and continuing until thirty (30) days prior to the later of the certification of votes deadline for the Company submission of stockholder nominations for directors for the 2017 Annual Meeting of Stockholders or pursuant to the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders Bylaws (the “Standstill Period”), except to the extent expressly permitted by the terms neither it nor any of this Agreement, none of the Sellers shallits Affiliates or Associates will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitpurchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Common Stock or other securities issued by the Company, or knowingly encourage any securities convertible into or exchangeable for Common Stock, such that the ▇▇▇▇▇ Group together with its Affiliates and Associates (as defined in Section 2.3) would, in the aggregate, beneficially own a number of shares in excess of 9.8% of the then outstanding shares of Common Stock;
(ii) offer, pledge, sell, contract to sell, sell any way option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend (other than in a customary commingled brokerage account in the ordinary course of business), or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable, directly or indirectly, for Common Stock, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise (each, a “Transfer”), in each case without the prior written consent of the Company; provided that the foregoing shall not restrict the ▇▇▇▇▇ Group from (A) a Transfer of any shares of Common Stock to a controlled affiliate that agrees to be bound by the terms of this Agreement and executes a joinder agreement reasonably acceptable to the Company with respect thereto, or (B) a Transfer of any shares of Common Stock in an ordinary course brokers’ transaction (within the meaning of Rule 144(g) of the Securities Act of 1933, as amended) that would not, to the knowledge of any ▇▇▇▇▇ Group Member, result in the ultimate transferee of such shares beneficially owning, together with its affiliates, a number of shares in excess of 9.8% of the then outstanding shares of Common Stock;
(iii) compensate or agree to compensate the Nominee (or the Replacement Director, if applicable) for his services as a director of the Company or otherwise in connection with the transactions contemplated by this Agreement;
(iv) engage in any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignstockholders), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”)Company;
(bv) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with any person who is not identified on Schedule A as a ▇▇▇▇▇ Group Member (any such person, a “Third Party”), with respect to the Common Stock, provided, however, that nothing herein shall limit the ability of an Affiliate of the ▇▇▇▇▇ 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;
(vi) 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 ▇▇▇▇▇ Group Members and otherwise in accordance with this Agreement;
(vii) seek, or encourage any person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors;
(viii) (A) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company Company, (B) publicly make any offer or FSFRproposal (with or without conditions) with respect to any merger, whether pursuant to Rule 14a-8 under acquisition, business combination, amalgamation, recapitalization, restructuring, disposition, distribution, spin-off, asset sale or other similar transaction involving the Exchange ActCompany, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct initiate or influence support any person Third Party with respect to any of the matters covered foregoing, (C) make any public communication in opposition to any transaction approved by this Section 3.1 the Board, (D) publicly criticize the Company’s business, financial structure or real estate, investment or other strategy, (E) call or seek to call a special meeting of stockholders, (F) initiate, encourage or participate in any “withhold” or similar campaign with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(gG) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions a request for a list of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor stockholders or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the other Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;records,
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iiix) seek, alone or in concert with others, representation on, or nominate any candidate to, on the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act except as specifically permitted by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderSection 1.1;
(jx) purchase seek to advise, encourage, support or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of influence any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant the disposition of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the CompaniesCompany, or voting of any securities of the Company at any annual or special meeting of stockholders, except in accordance with Section 1.2;
(nxi) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection request or submit any proposal to amend or 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 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingparty; or
(oxii) take disclose any action challenging the validity intention, plan or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive arrangement inconsistent with any provision of this AgreementSection 2.1 or publicly or privately encourage or support any other current or future stockholder of the Company to take any of the actions set forth in this Section 2.1(a).
(b) Notwithstanding anything to the contrary, nothing in this Agreement shall prohibit or restrict any director of the Company, including the Nominee (or any Replacement Director, if applicable), from exercising his or her rights and fiduciary duties as a director of the Company, including, but not limited to, (1) taking any action or making any statement at any meeting of the Board or of any committee thereof or (2) making any statement to the Chief Executive Officer, the Chief Financial Officer or any other director of the Company in his or her capacity as a director.
Appears in 2 contracts
Sources: Settlement Agreement (New Senior Investment Group Inc.), Settlement Agreement (Levin Capital Strategies, L.P.)
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers 4.1 The Shareholder shall cause their respective controlled Affiliates not tonot, directly or indirectly, in and shall not authorize or permit any mannerof its Representatives (to the extent acting on behalf of the Shareholder) or Controlled Affiliates, alone directly or in concert with othersindirectly, to, without the prior written consent of, or waiver by, Mylan:
(a) solicitsubject to Section 4.3, acquire, offer or seek to acquire, agree to acquire or make a proposal (including any private proposal to Mylan or the Board of Directors) to acquire, by purchase or otherwise (including through the acquisition of Beneficial Ownership), any securities (including any Equity Securities or Voting Securities) or Derivative Instruments, or knowingly encourage direct or indirect rights to acquire any securities (including any Equity Securities or Voting Securities) or Derivative Instruments, of Mylan or any Subsidiary or Affiliate of Mylan or any successor to or Person in Control of Mylan, or any securities (including any Equity Securities or Voting Securities) or indebtedness convertible into or exchangeable for any such securities or indebtedness; provided that the Shareholder may acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire Ordinary Shares (and any securities (including any Equity Securities or Voting Securities) convertible into or exchangeable for Ordinary Shares) and Derivative Instruments with respect to Ordinary Shares, if, immediately following such acquisition, the collective Beneficial Ownership of Ordinary Shares of the Shareholder and its Controlled Affiliates, as a group, would not exceed the Standstill Level;
(b) participate in any acquisition of assets or business of Mylan or its Subsidiaries or Affiliates (other than an acquisition initiated by Mylan or its Representatives);
(c) conduct, fund or otherwise become a participant in any “tender offer” (as such term is used in Regulation 14D under the Exchange Act) involving Equity Securities, Voting Securities or any securities convertible into, or exercisable or exchangeable for, Equity Securities or Voting Securities, in each case not approved by the Board of Directors;
(d) otherwise act in concert with others to seek to control or influence the Board of Directors or shareholders of Mylan or its Subsidiaries or Affiliates; provided that nothing in this clause (d) shall preclude the Shareholder or its Representatives from engaging in discussions with Mylan or its Representatives;
(e) make or join or become a participant (as defined in Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in (or in any way engage in knowingly encourage) any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” (as such terms are defined in Regulation 14A under as promulgated by the Securities Exchange Act of 1934, as amended (the “Exchange Act”SEC) of proxies or consents to vote any Voting Securities or any of the voting securities of any Subsidiaries or Affiliates of Mylan (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or including through action by encouraging or participating in any “withhold” or similar campaignwritten consent), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) otherwise knowingly advise, encourage, support, instruct advise or influence any person with respect to any of the matters covered by this Section 3.1 or Person with respect to the voting or disposition of any securities of the Companies at any annual Mylan or special meeting of stockholders of the Company its Subsidiaries or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreementAffiliates;
(f) form, join in or in make any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), public announcement with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFRto, or the management, policies solicit or affairs of either the Company or FSFRsubmit a proposal for, or with respect to this Agreementoffer, that is inconsistent with the provisions of this Agreement;
(h) 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 propose or propose to effect indicate an interest in (with or participate in, without conditions) any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, “tender offer” (as such term is used in Regulation 14D under the Exchange Act), recapitalization, reorganization, sale purchase or acquisition license of a material portion of the assets, liquidationproperties, dissolutionsecurities or indebtedness of Mylan or any Subsidiary or Affiliate of Mylan, extraordinary dividend, significant share repurchase or other similar extraordinary transaction involving the CompanyMylan, FSFR or either any Subsidiary of their investment advisors, or any of their subsidiaries or joint ventures Mylan or any of their respective securities (each, an “Extraordinary Transaction”)or indebtedness, or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any discussions, negotiations, arrangements, understanding understandings or agreements (whether written or oral) withwith any other Person regarding any of the foregoing (other than, in each case, a transaction initiated by Mylan or its Representatives);
(g) call or seek to call a meeting of shareholders of Mylan or initiate any shareholder proposal for action of Mylan’s shareholders, or adviseseek election or appointment to or to place a representative on the Board of Directors or seek the removal or suspension of any director from the Board of Directors;
(h) form, financejoin, assistbecome a member or in any way participate in a Group (other than with the Shareholder or any of its Controlled Affiliates) with respect to the securities of Mylan or any of its Subsidiaries or Affiliates;
(i) deposit any Voting Securities in a voting trust or similar Contract or subject any Voting Securities to any voting agreement, seek pooling arrangement or similar arrangement or Contract, or grant any proxy with respect to any Voting Securities (in each case, other than (i) with the Shareholder or any of its Affiliates or (ii) in accordance with Section 3.1);
(j) make any proposal or disclose any plan, or cause or authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to make any proposal or disclose any plan on its or their behalf, inconsistent with the foregoing restrictions;
(k) exercise any rights granted to shareholders of Mylan pursuant to Sections 2:110 or 2:114a of the Dutch Civil Code (Burgerlijk Wetboek) and the corresponding provisions of the Articles of Association;
(l) knowingly persuade take any action or encouragecause or authorize any of its and their directors, any Third Party officers, employees, agents, advisors and other Representatives to take any action on its or make their behalf that would reasonably be expected to require Mylan or any statement in connection with of its Subsidiaries or Affiliates to publicly disclose any of the foregoingforegoing actions or the possibility of a business combination, merger or make any investment other type of transaction or matter described in this Section 4.1;
(m) knowingly advise, assist, arrange or otherwise enter into any arrangement discussions or arrangements with any other person that engages, or offers or proposes third party with respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(on) take any action challenging directly or indirectly, contest the validity or enforceability of this Agreementof, or make seek an amendment, waiver, suspension or in any way advance any request or proposal that the Companytermination of, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementSection 4.1 (including this subclause) or Section 3.1 (whether by legal action or otherwise).
4.2 The Shareholder shall not, and shall not authorize or permit any of its Affiliates, directors, officers, employees, agents, advisors or other Representatives to, directly or indirectly, make, in each case to Mylan or to a third party, any proposal, statement or inquiry, or disclose any intention, plan or arrangement, whether written or oral, inconsistent with the provisions of this Section 4, or request Mylan or any of its Affiliates, directors, officers, employees, agents, advisors or other Representatives, directly or indirectly, to amend, waive, suspend or terminate any provision of this Section 4 (including this sentence). A breach of this Section 4 by any Affiliate, director, officer, employee, agent, advisor or other Representative of the Shareholder shall be deemed a breach by the Shareholder of this Section 4.
4.3 The prohibition in Section 4.1(a) shall not apply to the activities of the Shareholder or any of its Affiliates in connection with:
(a) acquisitions made as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change approved or recommended by the Board of Directors; or
(b) acquisitions made in connection with a transaction or series of related transactions in which the Shareholder or any of its Affiliates acquires a previously unaffiliated business entity that Beneficially Owns Equity Securities, Voting Securities or Derivative Instruments, or any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, at the time of the consummation of such acquisition, provided that in connection with any such acquisition, the Shareholder or such applicable Affiliate, as the case may be, (i) either (A) causes such entity to divest the Equity Securities, Voting Securities or Derivative Instruments, or any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, Beneficially Owned by the acquired entity within a period of one hundred twenty (120) calendar days after the date of the consummation of such acquisition or (B) divests the Equity Securities, Voting Securities or Derivative Instruments, or any other securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, Beneficially Owned by the Shareholder and its Affiliates, in an amount so that the Shareholder and its Affiliates, together with such acquired business entity, shall not, acting alone or as part of a Group, directly or indirectly, Beneficially Own a number of Ordinary Shares in excess of the Standstill Level following such acquisition, and (ii) if any general meeting of the shareholders of Mylan is held prior to the disposition thereof, votes such Ordinary Shares or other Voting Securities on each matter presented at any such general meeting of the shareholders of Mylan in accordance with the recommendation of the Board of Directors or any applicable committee thereof.
Appears in 2 contracts
Sources: Shareholder Agreement (Mylan N.V.), Shareholder Agreement (Mylan N.V.)
Standstill. Effective from (a) From the First Closing Date until the date of this Agreement on which the CD&R Designator is no longer entitled to designate a Director to the Board pursuant to Section 2.2, the CD&R Parties, the Purchaser and continuing until the later CD&R Manager shall not, shall cause each other CD&R Entity or Affiliate of the certification of votes for the Company 2017 Annual Meeting of Stockholders Purchaser or the certification CD&R Manager not to, shall use its reasonable best efforts to cause any portfolio company of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none any CD&R Entity or Affiliate of the Sellers shallPurchaser or the CD&R Manager not to, and Sellers shall cause their respective controlled Affiliates not toknowingly direct, recommend or encourage any such portfolio company to knowingly, directly or indirectly, in any manner, alone or in concert with otherswithout the prior written approval of at least a majority of the Directors not designated by the CD&R Designator:
(a1) solicitacquire, agree to acquire, propose or offer to acquire (including through any hedging or other similar transaction), Equity Securities or securities that are convertible or exchangeable into (or exercisable for), Equity Securities, other than as a result of (x) any stock split, stock dividend or subdivision of Equity Securities or (y) the exercise by the CD&R Parties of their preemptive rights pursuant to Section 2.6 below or (z) any Capitalization Issue in accordance with the Authorizing Resolutions or any conversion of the Preferred Shares pursuant to the Authorizing Resolutions;
(2) transfer any Equity Securities into a voting trust or similar contract or subject any Equity Securities to any voting agreement, pooling arrangement or similar arrangement (other than the Voting Agreement), or knowingly encourage grant any proxy with respect to any Equity Securities (other than to the Company or a person specified by the Company in a proxy card provided to shareholders of the Company by or on behalf of the Company);
(3) enter, agree to enter, or publicly propose or offer to enter into any merger, business combination, sale of assets, recapitalization, restructuring or change in control transaction;
(4) make, or in any way participate or engage in any solicitation ofin, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” (as such terms are defined used in Regulation Section 14A under of the Securities Exchange Act of 1934and the regulations promulgated thereunder) to vote, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders advise or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or Person with respect to the voting or disposition of of, any securities of the Companies at any annual or special meeting of stockholders Equity Securities, other than on behalf of the Company or FSFR, except in accordance with Section 3.4to effectuate the governance arrangements contemplated by the Transaction Documents;
(5) call, or seek to do so;
(d) agreecall, attempt, seek or propose to deposit any securities a meeting of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor shareholders of the Company or FSFR, or a modification to the terms or conditions initiate any shareholder proposal for action by shareholders of either the Company’s or FSFR’s investment advisory agreement, other than to effectuate the governance arrangements contemplated by the Transaction Documents;
(f6) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group (as defined under in Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of Equity Securities, other than with First Reserve or its Affiliates to the Companies or take any other action that would interfere with extent permitted by the ability of Sellers to vote in accordance with this Voting Agreement;
(gi) Transfer any Equity Securities to any Person who or that is (or will become upon consummation of such sale, transfer or other disposition) a beneficial owner of 10% or more of the Adjusted Ordinary Shares; or (ii) without the prior written consent of the Company, on any single day, Transfer more than 10% of the Adjusted Ordinary Shares through the public markets, in each case, other than pursuant to an underwritten registered public offering; or
(8) publicly disclose any intention, plan, arrangement or other contract prohibited by the foregoing.
(b) The Purchaser, the CD&R Manager and the CD&R Parties shall not, shall cause each other CD&R Entity or Affiliate of the Purchaser or the CD&R Manager not to and shall use its reasonable best efforts to cause any portfolio company of any CD&R Entity or Affiliate of the Purchaser or the CD&R Manager not to knowingly, directly or indirectly, take any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a business combination, merger, sale of assets or other type of transaction or matter described in Section 2.3(a).
(c) For the avoidance of doubt, this Section 2.3 shall in no way limit the ability of the Directors to act in their capacity as Directors, restrict any disclosureCD&R Entity from making private proposals to the Board, communicationor limit the CD&R Parties’ ability to vote or Transfer (subject to Section 2.3(a)(7)) any Equity Securities.
(d) The obligations of the Purchaser, announcement or statement regarding any intent, purpose, plan or proposal the CD&R Manager and the CD&R Parties in this Section 2.3 shall terminate and be of no further effect if the CD&R Parties no longer Beneficially Own at least 20% of the Adjusted Ordinary Shares and (1) the Company enters into a definitive agreement with respect to the FSC Board a merger, business combination, or sale of Directors all or substantially all of its direct and indirect assets, recapitalization or change of control transaction; (the “Company Board”), 2) the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or commences a process to solicit proposals with respect to this Agreement, that is inconsistent with any of the provisions transactions described in clause (1) of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate inSection 2.3(d), or publicly approves or recommends any of the transactions described in any way assist clause (1) of this Section 2.3(d); or facilitate any other person (3) a third party acquires, makes an offer to effect acquire, or seekmakes a public announcement with respect to its intention to make an offer to acquire (whether by a merger, offer or propose to effect or participate inbusiness combination, any sale of assets, recapitalization, restructuring, tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition otherwise) 20% or more of the Company’s assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR 20% or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling more of any meeting class of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member securities of the Company and the Board or the FSFR Board, (iv) seek, alone or publicly recommends in concert with others, or support any Third Party in seeking, to replace the investment advisor favor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementsuch acquisition.
Appears in 2 contracts
Sources: Shareholders Agreement (CHC Group Ltd.), Shareholders Agreement (CHC Group Ltd.)
Standstill. Effective from (a) During the date Standstill Period, the Investor agrees that it shall not, and shall cause its Affiliates and Associates not to, directly or indirectly:
(i) make any public announcement or proposal with respect to, or publicly offer or propose, (A) any form of this Agreement and continuing until the later business combination or acquisition or other transaction relating to a material amount of assets or securities of the certification Company or any of votes for its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to the Company 2017 Annual Meeting or any of Stockholders its subsidiaries or (C) any form of tender or exchange offer for shares of Common Stock or other Voting Securities, whether or not such transaction involves a Change of Control of the certification Company; it being understood that the foregoing shall not prohibit the Investor or its Affiliates or Associates from (x) acquiring Voting Securities, (y) selling or tendering their shares of votes for Common Stock, and otherwise receiving consideration, pursuant to any such transaction or (z) voting on any such transaction in accordance with Section 3;
(ii) engage in, or knowingly assist in the FSFR engagement in (as defined below) 2017 Annual Meeting including, but not limited to, engagement by use of Stockholders (the “Standstill Period”or in coordination with a universal proxy card), except any solicitation of proxies or written consents to vote any Voting Securities, or conduct, or assist in the extent expressly permitted by the terms conducting of, any type of this Agreementbinding or nonbinding referendum with respect to any Voting Securities, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toor assist or participate in any other way, directly or indirectly, in any manner, alone solicitation of proxies (or in concert written consents) with others:
(a) solicitrespect to, or knowingly encourage or in any way engage in any solicitation from the holders of, any proxies Voting Securities, or consents or otherwise become a “participant” in a “solicitation,” directly or indirectly, 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 1934, as amended amended, and with the rules and regulations thereunder (the “Exchange Act”) ), to vote any securities of proxies or consents the Company (including, without limitationbut not limited to, any solicitation of consents that seeks to call a special meeting of stockholders or by initiating, encouraging or participating in any “withhold” or similar campaign), in each casecase other than in a manner that is consistent with the Board’s recommendation on a matter or as otherwise permitted by Section 3;
(iii) acquire or offer, with respect seek, propose or agree to acquire, 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, ownership (including beneficial ownership) of any securities of the Company, any direct or indirect rights or options to acquire any such securities, any rights decoupled from the underlying securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) any derivative securities, or contracts or instruments in any way related to the price of shares of Common Stock, or any securities convertible assets or exchangeable into or exercisable for any such securities (collectively, “securities liabilities of the Companies”)Company, such that the Investors hold, directly or indirectly, in excess of 9.9% of the then-outstanding shares of Common Stock of the Company;
(biv) make any proposal for consideration by stockholders at any annual advise or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence encourage any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Companies at any annual Company other than in a manner that is consistent with the Board’s recommendation on a matter or special meeting in connection with an Extraordinary Transaction;
(v) other than in open market sale transactions where the identity of stockholders the purchaser is not known, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of the Company or FSFRany rights decoupled from the underlying securities held by the Investor to any Third Party that would result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time;
(vi) take any action in support of or make any proposal or request that constitutes or would result in: (A) advising, replacing or influencing any director or the management of the Company, including, but not limited to, any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Bylaws or the Articles of Incorporation, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act (in each case except in accordance with Section 3.4, as otherwise permitted by this Agreement);
(vii) call or seek to do socall, or request the call of, alone or in concert with others, any meeting of shareholders, whether or not such a meeting is permitted by the Bylaws, including, but not limited to, a “town hall meeting”;
(dviii) agree, attempt, seek or propose to deposit any securities shares of the Companies Common Stock or other Voting Securities in any voting trust or similar arrangement, or subject any securities shares of the Companies Common Stock or other Voting Securities to any arrangement or agreement with respect to the voting thereofof any shares of Common Stock or Voting Securities (other than (A) any such voting trust, except arrangement or agreement solely among the Investor and its Affiliates that is otherwise in accordance with Section 3.4this Agreement or (B) customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(eix) seek, or knowingly seek encourage or encourage advise any person person, to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toseek, or is reasonably likely to result in, the replacement of the investment advisor of the Company knowingly encourage or FSFR, or a modification take any other action with respect to the terms election or conditions removal of either the Company’s or FSFR’s investment advisory agreementany directors;
(fx) form, join or in any other way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Security; provided, however, that nothing herein shall limit the ability of an Affiliate of the Investor to join or in any way participate in the “group” currently in existence as of the Effective Date and comprising the Investor following the execution of this Agreement, so long as any such Affiliate agrees to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Exchange Act, files a partnershipSchedule 13D or an amendment thereof, limited partnershipas applicable, syndicate within two (2) business days after disclosing that the Investor has formed a group with such Affiliate;
(xi) demand a copy of the Company’s list of shareholders or its other group, books and records or make any request pursuant to Rule 14a-7 under the Exchange Act or under any statutory or regulatory provisions of Iowa providing for shareholder access to books and records (including, without limitationbut not limited to, a group as defined under Section 13(dlists of shareholders) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany;
(gxii) make engage any disclosure, communication, announcement private investigations firm or statement regarding other person to investigate any of the Company’s directors or officers;
(xiii) disclose in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions any of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor directors or the terms and conditions of FSFRCompany’s investment advisory agreement, the Company, FSFR, or the management, policies policies, strategy, operations, financial results or affairs affairs, any of either the Company its securities or FSFR, assets or with respect to this Agreement, Agreement that is inconsistent with the provisions of this Agreement;
(hxiv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement request or submit any proposal to amend or waive the terms of this Section 7 other than through non-public communications with the Company that would not be reasonably likely to trigger public disclosure regarding obligations for either Party;
(xv) take any intentaction challenging the validity or enforceability of any provisions in this Agreement; or
(xvi) enter into any discussions, purposenegotiations, plan agreements or proposal understandings with any Third Party with respect to any Extraordinary Transaction or this Agreement that action the Investor 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents prohibited from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party taking pursuant to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withSection 7, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with respect to 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 foregoingsuch action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or.
(ob) take any action challenging the validity Notwithstanding anything contained in Section 7(a) or enforceability of elsewhere in this Agreement, the Investor shall not be prohibited or make restricted from: (i) communicating privately with the Board or in any way advance any request officer or proposal that the Company, FSFR, director of the Company Board 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 either Party; (ii) making any statement or taking any action to the FSFR Board amendextent required by applicable law, modify rule or waive regulation or legal process, subpoena or legal requirement from any Governmental Authority with competent jurisdiction over the Investor or any national securities exchange designated as the primary market on which the Common Stock is listed for trading, provided, that a breach by the Investor of this Agreement is not the cause of the applicable requirement; or (iii) communicating privately with shareholders of the Company or others when such communication is not made with an intent to otherwise violate, and would not be reasonably expected to result in a violation of, any provision of this Agreement.
Appears in 2 contracts
Sources: Cooperation Agreement (Ancora Alternatives LLC), Cooperation Agreement (Green Plains Inc.)
Standstill. Effective Each Purchaser agrees that from the date of this Agreement Closing Date until, and continuing until through the later conclusion of, the first annual meeting of the certification of votes Company’s shareholders following the Closing Date for the Company 2017 Annual Meeting election of Stockholders or directors, without the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none prior written approval of the Sellers shallBoard, and Sellers shall cause their respective controlled Affiliates not tosuch Purchaser will not, directly or indirectly:
(a) acquire, in any manneroffer, seek, or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly, alone or in concert with others:, by purchase or otherwise, any direct or indirect beneficial interest in any assets of the Company, including without limitation, branches of the Company’s banking network and any voting securities of the Company or direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting securities of the Company, or any material portion of the assets or liabilities, including without limitation, debt securities or syndicated loans, of the Company;
(ab) solicitmake, or knowingly encourage or in any way engage knowingly participate in, directly or indirectly, alone or in concert with others (including, but not limited to, participation by use of or in coordination with a universal proxy card), any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Commission promulgated pursuant to Section 14 of the Exchange Act) or knowingly seek to advise or knowingly influence in any solicitation ofmanner whatsoever any Person with respect to the voting of any voting securities of the Company, any proxies or consents or otherwise become a “participant” in a “solicitation,” directly or indirectly, 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 1934, as amended (the “Exchange Act”) , to vote any securities of proxies or consents the Company (including, without limitationbut not limited to, any solicitation of consents that seeks to call a special meeting of stockholders or by initiating, encouraging or participating in any “withhold” or similar campaign);
(c) form, join, maintain or in each case, any way knowingly participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of the Company with respect to matters prohibited by this Section 4.22;
(d) acquire, offer to acquire, seek to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) all or substantially all of the assets, tangible or intangible, of the Company or any of its subsidiaries, (ii) direct or indirect rights, warrants or options to acquire all or substantially all of the assets of the Company or any of its subsidiaries, except for such assets as are then being offered for sale by the Company;
(e) arrange, or in any way knowingly participate, directly or indirectly, in any financing for the purchase of any voting securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible into or exchangeable into or exercisable for any such voting securities (collectively, “securities or assets of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFRCompany, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either such assets as are then being offered for sale by the Company’s or FSFR’s investment advisory agreement;
(f) formotherwise act, join in alone or in any way participate in a partnershipconcert with others, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect knowingly seek to any securities of the Companies or take any other action that would interfere with the ability of Sellers propose to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFRany of its shareholders, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) 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 indicate an interest in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale form of tender or acquisition exchange offer for any voting securities of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR restructuring, recapitalization or either of their investment advisors, other transaction to or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) otherwise seek, alone or in concert with others, representation onto control, change or nominate any candidate toinfluence the management, the Company Board board of directors or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor policies of the Company or nominate any Person as a director who is not nominated by the investment advisor of FSFRthen incumbent directors, (v) solicit consents from or propose any matter to be voted upon by the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum shareholders of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderCompany;
(jg) purchase make any request or cause proposal to be purchased amend, waive or otherwise acquire or agree to acquire beneficial ownership terminate any provision of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Companythis Section 4.22, unless any Buyer fails such request or proposal would not be reasonably likely to timely perform each result in a violation of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(iclause (h) of this Agreement;Section 4.22; or
(lh) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or that would reasonably result in the Company being required under applicable law to make any statement in connection with a public announcement regarding any of the foregoingmatters referred to in clauses (a) through (g) of this Section 4.22, or make any investment in announce an intention to do, or enter into any arrangement or understanding or discussions with any other person that engagesor advice, knowingly assist or offers or proposes knowingly encourage others to engagedo, in any of the foregoingactions restricted or prohibited under such clauses (a) through (g) of this this Section 4.22. provided, however, that nothing in this Section 4.22 will limit (1) such Purchaser’s or otherwise take its Affiliates’ ability to transfer (subject to Section 4.1) or cause any action convert shares of Series B Preferred Stock into Common Stock or make any statement inconsistent Non-Voting Common Stock (subject to applicable provisions in the Series B Preferred Stock Statement with any Respect to Shares), (2) Castle Creek’s or its Affiliates’ ability to exercise the Warrant pursuant to the terms of the foregoing; or
Warrant Agreement or exercise its rights pursuant to Section 4.18 and Section 4.19, (o3) take any action challenging such Purchaser’s or its Affiliates’ ability to confidentially request a waiver of the validity or enforceability provisions of this Agreement, or Section 4.22 to privately make or in and submit to the Board any way advance any request offer or proposal that is intended by such Purchaser to be made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expected to require public disclosure by any Person) or (4) the Company, FSFR, ability of the Company Board Representative to vote or otherwise exercise his or her legal duties or otherwise act in his or her capacity as a member of the FSFR Board amend, modify or waive any provision of this AgreementBoard.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Republic First Bancorp Inc), Securities Purchase Agreement (Republic First Bancorp Inc)
Standstill. Effective Shareholder agrees that, for a period of two years from the date Effective Time, unless such shall have been specifically invited in writing by MAPICS, neither Shareholder nor any of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders its directors, officers or the certification of votes for the FSFR employees (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”collectively, "Representatives"), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not towill in any manner, directly or indirectly, in any manner, alone or in concert with others:
(a) soliciteffect or seek, offer or propose (whether publicly or otherwise) to effect, or knowingly encourage cause or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join participate in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) 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 (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or assets of MAPICS or any of its Subsidiaries; provided that Shareholder may acquire shares of MAPICS equal to or less than five percent (5%) of the number of shares issued to Shareholder in the Merger, (ii) any tender or exchange offer, mergermerger or other business combination involving MAPICS or any of its Subsidiaries, consolidation, acquisition, scheme, arrangement, business combination, (iii) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, with respect to MAPICS or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”)its Subsidiaries, or make (iv) any statement "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or disclosure regarding consents to vote any intentvoting securities of MAPICS, purpose(b) form, plan join or proposal with respect in any way participate in a "group" (as defined under the 1934 Act) other than any "group" that may be deemed to any Extraordinary Transaction be formed by thi▇ ▇▇▇▇▇▇ent or this Agreement that is inconsistent with by the provisions of this Investor Rights Agreement, including 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 or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(ic) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, representation onto seek to control or influence the management, board of directors or policies of MAPICS, (d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above, or nominate (e) enter into any candidate to, the Company Board discussions or the FSFR Board, (iii) seek the removal of arrangements with any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims third party with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing. Shareholder also agrees during such period not to request MAPICS (or its directors, officers, employees, advisors or make any investment in agents), directly or enter into any arrangement with any other person that engagesindirectly, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify amend or waive any provision of this Agreementparagraph (including this sentence). Shareholder acknowledges that Shareholder is aware (and that its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit Shareholder, its Representatives, and any person who has received material non-public information about MAPICS from purchasing or selling securities of MAPICS or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance on such information.
Appears in 2 contracts
Sources: Shareholder Agreement (Morgan Stanley), Shareholder Agreement (Frontstep Inc)
Standstill. Effective (a) Subject to Section 3.9(c), from and after the date of this Agreement and continuing until the later earlier of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (i) a Termination Event (as defined belowin the SPV LPA) 2017 Annual Meeting of Stockholders and (ii) in the “Standstill Period”), except to event that the extent expressly permitted transactions contemplated by the terms Purchase Agreement are not consummated, the termination of this Agreementthe Purchase Agreement in accordance with its terms, none of the Sellers shall, and Sellers shall cause Investor Parties nor any of their respective controlled Affiliates not toor any Searchlight Affiliate shall, directly or indirectly, offer to acquire or acquire (or propose, agree or seek permission, to acquire), of record or beneficially, by purchase, sale or otherwise, any securities, assets or indebtedness of the Company or any of its controlled Affiliates, or rights or options to acquire interests in any mannersecurities, alone assets or in concert with others:
(a) solicit, indebtedness of the Company or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign)its controlled Affiliates, in each case, with respect to securities without the prior written approval of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”Independent Directors; provided, however, that for the avoidance of doubt, this Section 3.9(a) shall not apply to the transactions contemplated by the Purchase Agreement and the Investor’s acquisition of the Interests pursuant thereto; and provided, further, that this Section 3.9(a) shall not apply to any Person constituting a portfolio investment of Searchlight or any securities convertible of its Affiliates, so long as such Person is not acting at the direction of Searchlight or exchangeable into its Affiliate (other than such portfolio investment).
(b) Notwithstanding Section 3.9(a), nothing in this Section 3.9 shall restrict any of the Investor Parties from making any proposal regarding a possible transaction involving the Company directly to the Board.
(c) Notwithstanding Section 3.9(a), but subject to Section 3.5(b), nothing in this Section 3.9 shall restrict any of the Investor Parties from undertaking a transaction or exercisable submitting an offer for a transaction involving the Company that would qualify as a “Rule 13e-3” transaction (as defined under the Exchange Act); provided, further, that nothing herein shall prohibit Searchlight or any of its Affiliates from providing financing for or otherwise participating in such securities a transaction.
(d) The restrictions set forth in Section 3.9(a) shall not apply if and for so long as any Rights Plan has been adopted by the Company and/or the Board and remains in effect.
(e) Notwithstanding anything to the contrary herein, nothing in this Agreement shall restrict or prevent ▇▇▇▇ or any Searchlight Director, from, consistent with the past practices of the Company, (i) receiving from the Company any equity or equity-based compensation in connection with such Person’s service as a member of the Board or any committee(s) thereof, or (ii) exercising any rights or options in connection with such equity or equity-based compensation (collectively, “securities of the CompaniesDirector Equity”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 2 contracts
Sources: Stockholders Agreement (InterMedia Partners VII LP), Stockholders Agreement (Hemisphere Media Group, Inc.)
Standstill. Effective from (a) As used in this Agreement, “Standstill Period” means the period commencing on the date of this Agreement and continuing until ending at 11:59 p.m. (eastern time) on July 1, 2018. During the later Standstill Period, the Stockholders irrevocably agree that they will not take any of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not tofollowing actions, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitsolicit proxies or written consents of the Company’s shareholders or any other person with the right to vote or power to give or withhold consent in respect of any of the Common Stock, or knowingly encourage conduct, encourage, participate or engage in any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Common Stock or any other person with the right to vote or power to give or withhold consent in respect of the Common Stock, make, or in any way participate or engage in any solicitation ofin, any proxies or consents or become a “participant” in a “solicitation,” directly of any proxy, consent or indirectly, other authority (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended 1934 (the “Exchange Act”) of proxies to vote any Common Stock or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any shareholder proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, (whether pursuant to Rule 14a-8 promulgated under the Exchange Act, either such company’s constituent documents Act or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 matter, or become a participant in any contested solicitation with respect to the voting Company, including without limitation relating to the removal or disposition the election of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do sodirectors;
(dii) agree, attempt, seek form or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate syndicate, entity or other group, including, including without limitation, limitation a group “group” as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”)Act, with respect to the Common Stock (other than any securities group composed solely of either of the Companies Stockholders and their respective affiliates), or take otherwise directly or indirectly support or participate in any other action effort by a third party with respect to any of the matters prohibited by this Section 3 provided, however, that would interfere with nothing contained in this Section 3 shall limit the ability of Sellers an affiliate of either of the Stockholders to vote in accordance with join the “group” following the execution of this Agreement;
(g) make , so long as any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect such affiliate agrees to the FSC Board of Directors (the “Company Board”), the Company investment advisor or be bound by the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hiii) effect without the prior approval of the Board contained in a written resolution of the Board, as a result of acquiring beneficial ownership of or economic interest in any Common Stock of the Company, become a beneficial owner (either individually or as part of any “group” as defined under Section 13(d) under the Exchange Act) of, or have an economic interest in, any Common Stock of the Company which would be deemed under Rule 13d-3(c) promulgated under the Exchange Act to constitute a number of shares of Common Stock in excess of the greater of 8.0% of the then issued and outstanding shares of Common Stock of the Company and 4,767,992 shares of Common Stock of the Company (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments);
(iv) present at any meeting of the shareholders of the Company any proposal for consideration for action by shareholders or seek to effect(including pursuing or encouraging any “withhold” or similar campaign) the removal of any member of the Board;
(v) other than in sale transactions on the open market or through a broker or dealer where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, knowingly sell, offer or propose agree to effectsell 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 Stockholders to any person or entity not a party to this Agreement that will, as a result of the transaction, acquire beneficial ownership of or economic interest in more than 5.0% of the then issued and outstanding shares of Common Stock of the Company;
(A) make, directly or indirectly for itself or its Affiliates or in conjunction with any other person or entity, or cause or participate in, any offer or in proposal (with or without conditions) with respect to any way merger, acquisition, recapitalization, restructuring, reorganization, tender offer, exchange offer, disposition or other business combination involving the Company or any of its subsidiaries or affiliates or a material amount of assets or securities of the Company or any of its subsidiaries or affiliates,
(B) affirmatively solicit a third party to make or modify an offer or proposal (with or without conditions) with respect to any merger, acquisition, recapitalization, restructuring, reorganization, tender offer, exchange offer, disposition or other business combination involving the Company or any of its subsidiaries or affiliates or a material amount of assets or securities of the Company or any of its subsidiaries or affiliates, or encourage, initiate, support, assist or facilitate any other person to effect third party in making or seek, modifying such an offer or propose to effect or participate inproposal, or
(C) publicly comment on any third party proposal regarding any merger, acquisition, recapitalization, restructuring, reorganization, tender or offer, exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase disposition or other extraordinary transaction business combination involving the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures affiliates or a material amount of assets or securities of the Company or any of their respective securities (each, an “Extraordinary Transaction”), its subsidiaries or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionaffiliates;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iivii) seek, alone or in concert with others, representation onon the Board (except as provided in this Agreement), or nominate propose any candidate to, nominee for election to the Company Board or seek representation on the FSFR Board, or otherwise seek to advise, influence or control the management, governance, policies, business or affairs (iiior any change thereof) of the Company;
(viii) seek to advise, encourage, support or influence any person or entity with respect to the removal voting of any member Common Stock at any meeting of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor shareholders of the Company Company;
(ix) grant any proxy, consent or other authority to vote with respect to any matters (other than to the investment advisor of FSFR, (v) solicit consents from named proxies included in the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum Company’s proxy card for any meeting of the Company shareholders of the Company) or FSFR stockholders 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;
(viix) make a request any further requests for any stockholders stockholder list materials or any other books and records in Sellers’ capacity as a of the Company under Section 220 of the Delaware General Corporation Law or FSFR stockholderotherwise;
(jxi) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued other than litigation by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by Stockholders to enforce the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) provisions of this Agreement;
(l) , institute, solicit solicit, assist or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against or involving the Company or FSFR or any of their its current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(mxii) enter into disclose that the Stockholders voted or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect intend to or having any measurement relating vote contrary to any securities the recommendation of the CompaniesBoard;
(nxiii) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by the Stockholders or the Company; or
(xiv) enter into any negotiations, arrangementsagreements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection understandings with any third party with respect to the matters set forth in this Section 3 (except as provided in this Agreement).
(b) Except as expressly provided in Section 3(a), the Stockholders shall be entitled to:
(i) vote their respective shares on any other proposal duly brought before any meeting 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 shareholders of the foregoing, Company or otherwise take or cause any action or make any statement inconsistent with any of vote as the foregoingStockholders determines in their respective sole discretion; orand
(oii) take disclose, publicly or otherwise, how they intend to vote or act with respect to any action challenging the validity or enforceability securities of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, any shareholder proposal or other matters to be voted on by the shareholders of the Company Board or and the FSFR Board amend, modify or waive any provision of this Agreementreasons therefor.
Appears in 2 contracts
Sources: Settlement Agreement (Krensavage Asset Management, LLC), Settlement Agreement (Rti Surgical, Inc.)
Standstill. Effective (a) Except for actions expressly permitted by this Agreement, each of the Holders agrees that (i) from the date of this Agreement and continuing until the later Special Meeting is permanently adjourned and (ii) if each of Messrs. ▇▇▇▇ and ▇▇▇▇▇▇▇ is elected as a director at the Special Meeting, until the earlier of (x) the 2009 Annual Meeting or (y) such earlier time as Messrs. ▇▇▇▇ and ▇▇▇▇▇▇▇ are no longer directors of the certification of votes Company for a reason other than their voluntary resignation from the Company 2017 Annual Meeting of Stockholders or Board, without the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none prior written consent of the Sellers shallBoard specifically expressed in a written resolution adopted by a majority vote of the entire Board, neither such Holder nor any of its Affiliates or Associates under its control or direction will, and Sellers shall it will cause their respective controlled each of its Affiliates and Associates under its control not to, directly or indirectly, in any manner, alone or in concert with others:
: (aA) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents to vote any voting securities of the Company in opposition to the recommendations of the Board or become a participant in any election contest with respect to the Company; (B) otherwise take any action to obtain representation on the Board; (C) take any action that is designed to require the Company to make a public announcement regarding its strategic alternatives; (D) enter into any agreements with any third party with respect to any of the foregoing; or (E) make any public announcement with respect to any of the foregoing, except as advised by counsel to comply with applicable law and regulations.
(b) As used in this Agreement, the terms “participantAffiliate” and “Associate” shall have the respective meanings set forth in a Rule 12b-2 promulgated by the Securities and Exchange Commission (the “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A SEC”) 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 to call a special meeting of stockholders or ); the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 SEC under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of ; and the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a terms “contested solicitationperson” or take other action for the election “persons” shall mean any individual, corporation (including not-for-profit), general or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a limited partnership, limited partnershipliability company, syndicate joint venture, estate, trust, association, organization or other entity of any kind or nature; and “group, including, without limitation, a group ” shall have the meaning as defined set forth in Rule 13d-5 promulgated by the SEC under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementAct.
Appears in 1 contract
Sources: Shareholder Agreement (Cryo Cell International Inc)
Standstill. Effective from During the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)Term, except with respect to the extent expressly permitted by the terms of this AgreementCompany, none of the Sellers shallBarington shall not, and Sellers shall cause their respective controlled its Affiliates and Associates and any Person acting on behalf of or in concert with Barington or any of its Affiliates or Associates (each, a “Barington Representative”) not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act, but, with respect to the term “solicitation”, without regard to the exclusion set forth in Rule 14a-1(l)(2), except for the exclusion set forth in Rule 14a-1(l)(2)(iv)(B)) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignshareholders), in each case, with respect to the securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);Company;
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct advise or influence any person with respect to other Person, or knowingly assist any of the matters covered by this Section 3.1 other Person in encouraging, advising or influencing any other Person, (i) with respect to the voting or disposition the giving or withholding of any proxy, consent or other authority to vote involving the Company or the taking of any other action with respect to a Barington Representative’s Voting Securities or (ii) in conducting any type of referendum, binding or non-binding, involving the Company, in each case of the foregoing other than such encouragement, advice or influence that is consistent with the Company management’s recommendation in connection with such matter;
(c) form, join or participate in any way in any “group” (as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to the securities of the Companies at any annual or special meeting of stockholders of the Company or FSFRCompany, except that nothing in accordance with this Agreement will limit the ability of an Affiliate, Associate or investment advisory client of Barington to join the Barington “group” following the execution of this Agreement so long as any such Affiliate, Associate or investment advisory client agrees to be bound by the terms and conditions of this Agreement including this Section 3.4, or seek to do so;4;
(d) agreeinitiate, attemptencourage, seek to effect or propose in any way assist with or facilitate any offer or proposal (with or without conditions), or negotiations, agreements or understandings whether or not legally enforceable, with respect to a merger, acquisition, tender offer, exchange offer, business combination, share exchange, recapitalization, restructuring, liquidation, dissolution, disposition or other similar transaction involving the Company or any of its subsidiaries or any material portion of its or their businesses (each, a “Business Transaction”);
(e) deposit any securities of the Companies Voting Securities in any voting trust or similar arrangement, or subject any securities of the Companies Voting Securities to any arrangement or agreement with respect to the voting thereofof any Voting Securities, except other than any such voting trust, arrangement or agreement solely among Barington and otherwise in accordance with Section 3.4this Agreement;
(ef) knowingly seek grant any proxy with respect to any Voting Securities (other than to a designated representative of the Company pursuant to a proxy statement of the Company) or take any action requiring a Barington Representative to report beneficial ownership of Voting Securities on Schedule 13D under the Exchange Act;
(g) initiate, encourage or participate in any person to submit (A) nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFRCompany, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fB) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board election or removal of Directors (the “Company Board”), the Company investment advisor or the terms and conditions any directors of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (iiC) seekeffort, alone or in concert with others, to obtain representation on, or nominate any candidate to, on the Company Board or (D) referendum of Shareholders;
(h) make or be the FSFR Board, (iii) seek the removal proponent of any member of shareholder proposal (pursuant to Rule 14a-8 under the Company Board Exchange Act or otherwise) for consideration by the FSFR Board, Shareholders;
(iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (viii) make a any request for any stockholders stockholder list material or any other books and records in Sellers’ capacity as a Company or FSFR stockholderof the Company;
(j) purchase unless required by law, rule or regulation, make or issue or cause to be purchased made or otherwise acquire issued any public disclosure, announcement or agree to acquire beneficial ownership of any securities issued by statement concerning the Company or FSFRaimed at influencing the management or direction of the Company; provided, however, that without limiting Section 5, this Section 4 shall not prevent Barington from publicly commenting on any merger, consolidation, business combination or other material Business Transaction of the Company, or any securities convertible into amendment of the Company’s Certificate of Incorporation or exchangeable Bylaws (except for securities issued any such amendment contemplated by the Company or FSFRMutual Press Release);
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding agreements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, understandings with any Third Party third party to take any action or make that any statement 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 Barington Representative is prohibited from taking pursuant to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; this Section 4; or
(ol) take make any action challenging request or submit any proposal to amend or waive the validity or enforceability terms of this Agreement, or make or in any way advance any each case which would reasonably be expected to result in a public announcement of such request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementproposal.
Appears in 1 contract
Sources: Agreement (L Brands, Inc.)
Standstill. Effective from the date Servier agrees that neither it nor any Affiliate, acting alone or as part of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)any group, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any mannerfor a period commencing on the Effective Date and ending *** after the Effective Date, alone without the prior written approval of MacroGenics’ Board of Directors:***
15.1.1 acquire or in concert with others:
(a) solicitagree, offer, seek or propose to acquire, or knowingly encourage cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d 3 under the Securities and Exchange Act of 1934) of any of the assets or businesses of MacroGenics or of any securities of MacroGenics, or any rights or options to acquire any such ownership (including from a third party);
15.1.2 make, or in any way engage ***, in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, of “proxies” (as such terms are defined used in Regulation 14A under the proxy rules of the Securities and Exchange Act of 1934Commission) to vote, as amended (the “Exchange Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks seek to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct advise or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any voting securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soMacroGenics;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) 15.1.3 form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitationin, a group as defined under “group” (within the meaning of Section 13(d13(d)(3) of the Securities Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement1934) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any voting securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementMacroGenics;
(g) make any disclosure15.1.4 otherwise act, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, whether alone or in concert with others, representation onto seek to propose to MacroGenics any merger, business combination, restructuring, recapitalization or nominate any candidate tosimilar transaction to or with MacroGenics or otherwise act, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, whether alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act control, *** of MacroGenics who is not nominated by written consentthe then incumbent directors,
15.1.5 solicit, (vi) conduct negotiate with, or provide any information to, any person with respect to a referendum merger, exchange offer or liquidation of the Company or FSFR stockholders or (vii) make a request for any stockholders list MacroGenics or any other books and records in Sellers’ capacity as a Company acquisition of MacroGenics, any acquisition or FSFR stockholdervoting securities of or all or any portion of the assets of MacroGenics or any other similar transaction;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of 15.1.6 announce an intention to, *** with any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joiningthird party with respect to, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;foregoing; or
(n) enter into 15.1.7 disclose any negotiations, arrangements, understanding or agreements (whether written or oral) with*** with the foregoing, or advise, finance, assist, seek to knowingly persuade assist or encourage, encourage any Third Party to take any action or make any statement other persons in connection with any of the foregoing. In addition, or make any investment in or enter into any arrangement with any other person Servier hereby agrees that engages, or offers or proposes to engage, in any of during the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability term of this Agreement, it shall not request MacroGenics, directly or make or in any way advance any request or proposal that the Companyindirectly, FSFR, the Company Board or the FSFR Board amend, modify to amend or waive any provision of this AgreementARTICLE 15, (including this sentence.) ***.
Appears in 1 contract
Standstill. Effective from (a) Each Purchaser agrees that, during the date Standstill Period (unless specifically requested in writing by the Company, acting through a resolution of this Agreement and continuing until the later a majority of the certification Company’s directors), such Purchaser shall not, and shall cause each of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR its Affiliates (as defined below) 2017 Annual Meeting of Stockholders (collectively and individually, the “Standstill PeriodPurchaser Affiliates”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates ) not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the Company for the election of individuals to the Board of Directors or to approve stockholder proposals that have not been authorized and approved, or recommended for approval, by the Board of Directors, or become a “participant” in a any contested “solicitation,” directly or indirectly, (as such terms are defined in Regulation 14A or used under the Securities Exchange Act) for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of Directors at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act of 1934or otherwise);
(ii) form, as amended (the “Exchange Act”) of proxies join, encourage, influence, advise or consents (including, without limitation, in any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating way participate in any “withholdgroup” or similar campaign), (as such term is defined in each case, Section 13(d)(3) of the Exchange Act) with any persons who are not such Purchaser’s Purchaser Affiliates with respect to any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4as expressly permitted by this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, including, without limitation, group (including any group of persons that would be treated as a group as defined single “person” under Section 13(d) of the Exchange Act Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities that would result in such Purchaser (except together with such participation related Purchaser’s Purchaser Affiliates), beneficially owning (within the meaning of Rule 13d-3 of the Exchange Act) more than 19.99% in the aggregate of the shares of the Company Common Stock outstanding at such time (assuming all the Notes are converted on a fully Physical Settlement basis); provided that nothing herein will require any Notes, shares of Company Common Stock or other securities to be sold to the reasonable unwinding extent such Purchaser and such Purchaser’s Purchaser Affiliates, collectively, exceed the ownership limit under this paragraph as the result of a share repurchase or any such group currently existing as other Company actions that reduces the number of outstanding shares of Company Common Stock. For the avoidance of doubt, this Section 4.03(a)(iii) shall not restrict conversion of the date Notes and shall not be violated by any conversion rate adjustment. Notwithstanding the second sentence of the definition of “Affiliate” in this Agreement, for purposes of this Section 4.03(a)(iii), no securities Beneficially Owned by a portfolio company of such Purchaser or its Affiliates will be deemed to be Beneficially Owned by such Purchaser or any of its Affiliates only so long as (x) such portfolio company would not be deemed an Affiliate of such Purchaser for purposes of this Section 4.03 under the definition of “Affiliate” in this Agreement, (y) neither such Purchaser and nor any of its Purchaser Affiliates has encouraged, instructed, directed, assisted or advised, or coordinated with, such portfolio company with respect to the acquisition, voting or disposition of securities of the Company by the portfolio company and (z) neither such Purchaser or any of its Affiliates is a member of a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), that portfolio company with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany;
(giv) make transfer, directly or indirectly, through swap or hedging transactions or otherwise, the Notes or Company Common Stock Beneficially Owned by such Purchaser or its Affiliates or any disclosureeconomic or voting rights decoupled from the underlying securities held by such Purchaser or its Affiliates to any Third Party that, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board knowledge of Directors such Purchaser at the time it enters into such transaction, would result in such Third Party, together with its Affiliates, having Beneficial Ownership in the aggregate of more than 10% of the shares of Company Common Stock outstanding at such time; provided, that (the “Company Board”)x) such Purchaser or its Affiliates, as applicable, shall provide written notice to the Company investment advisor if it has actual knowledge at the time of such transaction that such transfer, directly or indirectly, through swap or hedging transactions or otherwise, of its Notes or Company Common Stock to any Third Party would result in such Third Party, together with its Affiliates, having Beneficial Ownership in the terms and conditions aggregate of more than 10% of the Company’s investment advisory agreementshares of Company Common Stock outstanding at such time and (y) nothing in this clause (iv) shall in any way prohibit, the FSFR Board of Directors limit or restrict any transfer (the “FSFR Board”)A) pursuant to a Permitted Loan or any foreclosure thereunder, the FSFR investment advisor (B) pursuant to a Third Party Tender/Exchange Offer or the terms and conditions of FSFR’s investment advisory agreementpursuant to a merger, consolidation or similar transaction entered into by the Company, FSFR(C) in a bona fide underwritten public offering (or an equivalent transaction under Rule 144A), in a block sale to one or more broker-dealers in connection with a transaction pursuant to Rule 144A or in a broker transaction pursuant to Rule 144 (provided that, in relation to any such Rule 144A offering or such Rule 144 offering, such Purchaser has not instructed or encouraged any initial purchaser, broker or broker dealer as applicable, to sell such Notes or Company Common Stock to a specific Third Party or class of Third Parties which would otherwise result in a violation of this clause (iv)), or the management, policies or affairs of either the Company or FSFR(D) in a derivatives transaction entered into with, or with respect to this Agreementpurchased from, a bank, broker-dealer or other recognized derivatives dealer that is inconsistent with not a hedge fund or activist investor, or to the provisions knowledge of this Agreementsuch Purchaser, an Affiliate of a hedge fund or activist investor;
(hv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition of all or substantially all assets, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, Company or any of their subsidiaries its Subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by such Purchaser or disclosure its Purchaser Affiliate of any securities of the Company into any Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or the vote by such Purchaser or its Purchaser Affiliate of any voting securities of the Company with respect to any Extraordinary Transaction;
(vi) (vi) (A) call or seek to call any meeting of stockholders of the Company, including by written consent, (B) seek representation on the Board of Directors, except as expressly set forth herein, (C) seek the removal of any member of the Board of Directors, (D) solicit consents from stockholders or otherwise act or seek to act by written consent with respect to the Company, (E) conduct a referendum of stockholders of the Company or (F) make a request for any stockholder list or other Company books and records, whether pursuant to Section 220 of the DGCL or otherwise;
(vii) take any action in support of or make any proposal or request that constitutes: (A) controlling or changing the Board of Directors or management of the Company, including any plans or proposals to declassify the Board of Directors or to change the number or term of directors or to fill any vacancies on the Board of Directors, (B) any material change in the capitalization or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) make statements reasonably expected to disparage or cause to be disparaged the Company or its Subsidiaries or any of its current or former officers or directors in a manner reasonably expected to cause harm to such person and using a means of communication that is reasonably expected to be and results in a broad dissemination of such remarks (provided such Purchaser or its applicable Affiliates shall have an opportunity to publicly cure any such statement within two (2) Business Days after being informed by the Company that such Purchaser or its Affiliates have breached this clause (viii));
(ix) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any Extraordinary Transaction of its securities or assets 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(ix) (i) call enter into any discussions, negotiations, agreements or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert understandings with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withforegoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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 respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(oxi) take request, directly or indirectly, any action challenging the validity amendment, modification or enforceability waiver of this AgreementSection 4.03 (including this clause (xi)).
(b) The foregoing provisions of Section 4.03(a) shall not be deemed to prohibit a Purchaser or any of its Purchaser Affiliates or their respective directors, executive officers, partners, employees or make managing members or agents (acting in any way advance any request or proposal that such capacity) from communicating privately with the Company’s directors, FSFRofficers or advisors regarding the matters set forth in Section 4.03(a) so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications.
(c) Notwithstanding anything in this Section 4.03 to the contrary, if (i) the Company enters into a definitive agreement providing for a transaction that, if consummated, would result in a Change in Control and (ii) the Company had not, reasonably prior to entering into such definitive agreement, provided a Purchaser with a written notice inviting any of its Purchaser Affiliates to make one or more proposals or offers to effect a transaction that would result in Change in Control, then after the announcement of such transaction and prior to the earlier of any termination of such definitive agreement or Company stockholder approval of such definitive agreement, nothing in this Section 4.03 will prevent such Purchaser Affiliates from (A) submitting to the Board of Directors one or more bona fide proposals or offers for an alternative transaction involving, directly or indirectly, one or more of such Purchaser Affiliates, (B) pursuing and entering into any such alternative transaction with the FSFR Company and (C) taking any actions in furtherance of the foregoing, including actions relating to obtaining equity and/or debt financing for the alternative transaction as long as (x) any proposal or offer is conditioned on the proposed transaction being approved by the Board amendof Directors and (y) such Purchaser Affiliates do not make any public announcement or disclosure of such proposal, modify offer or waive actions other than any provision of this Agreementfilings and disclosures that may be required in filings with the SEC.
Appears in 1 contract
Sources: Investment Agreement (Pacific Biosciences of California, Inc.)
Standstill. Effective a. Employee, on behalf of himself or herself and his or her Affiliates, agrees that, from the date of this Agreement and continuing until the later date ending thirty (30) calendar days prior to the expiration of the certification of votes Company’s advance notice period for the Company 2017 nomination of directors at the Company’s 2021 Annual Meeting of Stockholders or Stockholders, without the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none prior consent of the Sellers shallmajority of the Board (which shall include the affirmative approval of each of the independent directors) specifically expressed in a written resolution, neither of him or her nor any of his or her Affiliates nor any other persons acting under his or her control or direction, whether now or hereafter existing, will, and Sellers shall he or she will cause their each of his or her Affiliates and such other persons under his or her respective controlled Affiliates control, whether now or hereafter existing, not to, directly or indirectly, in any manner, alone or in concert with others:, in any manner;
(ai) solicitPropose or publicly announce or otherwise disclose an intent to propose or enter into or agree to enter into, singly or knowingly encourage with any other person, directly or in indirectly, (A) any way 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, (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (C) any form of tender or exchange offer for the Common Stock, whether or not such transaction involves a change of control of the Company;
(ii) engage in any solicitation of, any of proxies or written consents to vote any voting securities of the Company, or conduct any non-binding referendum with respect to any voting securities of the Company, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to any voting securities of the Company, or otherwise become a “participant” in a “solicitation,” directly or indirectly, 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 1934, as amended (the “Exchange Act”, to vote any securities of the Company in opposition to any recommendation or proposal of the Board;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, 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 proxies the Exchange Act), through swap (other than cash settled swaps) or consents (including, without limitationhedging transactions or otherwise, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating (A) interests in any “withhold” of the Company’s indebtedness, or similar campaign)(B) shares of Common Stock (including any rights decoupled from the underlying securities of the Company) that, in each casefollowing such acquisition, would result in, Employee, together with his or her Affiliates, being or becoming beneficial owners of 5.0% or more of the shares of the then outstanding shares of Common Stock.
(iv) seek to advise, encourage or influence any person, including without limitation ISS or Glass Lewis, with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company or Fifth Street Senior Floating Rate Corp. recommendation thereof, other than in a manner consistent with a recommendation made by the Board; (“FSFR”v) sell, offer or any securities convertible agree to sell directly or exchangeable into indirectly, through swap or exercisable for any such securities (collectivelyhedging transactions or otherwise, “the securities of the CompaniesCompany or any rights decoupled from the underlying securities held by Employee to any person or entity not (A) an officer of the Company, or (B) an Affiliate of Employee (any person or entity not set forth in clauses (A)-(B) shall be referred to as a “Third Party”)) that would knowingly result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time;
(bvi) take any action in support of or make any proposal for consideration by stockholders at any annual or special meeting request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Amended and Restated Certificate of Incorporation or Bylaws or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(vii) initiate, propose or otherwise “solicit” stockholders of the Company or FSFR, for the approval of any stockholder proposals (whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents Act or otherwise);
(cviii) knowingly advise, encourage, support, instruct communicate with stockholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act;
(ix) engage in any course of conduct with the purpose of causing stockholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s stockholders for their vote at any meeting of the Company’s stockholders;
(x) publicly act to seek to control or influence the management, the Board, or policies of the Company or initiate or take any person action to obtain representation on the Board (other than as contemplated by this Agreement or the Consulting Agreement);
(xi) call or seek to call, or request the call of, alone or in concert with respect others, any meeting of stockholders, whether or not such a meeting is permitted by the Company’s Amended and Restated Certificate of Incorporation or Bylaws;
(xii) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the matters covered assets or business of the Company or any rights or options to acquire any such assets or business from any person;
(xiii) seek election or appointment to the Board or seek to place a representative on the Board (other than as contemplated by this Section 3.1 Agreement);
(xiv) seek the removal of any director from the Board;
(xv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement (including, without limitation, any proxy) with respect to the voting or disposition of any securities Common Stock, other than any revocable proxy given in response to a proxy solicitation made by the Company, provided that the proxy provides instructions to vote the shares of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except Common Stock in accordance with Section 3.4, or seek to do sothe recommendation of the Board;
(dxvi) agreepropose, attemptsubmit, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangementseek, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to propose, submit or seek, nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFRseek, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies encourage or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board election or removal of Directors any directors; (the “Company Board”)xvii) form, the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, join or in any other way assist or facilitate participate in 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 “group” (within the meaning of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(iSection 13(d)(3) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transactionExchange Act) with respect to or having any measurement relating to any securities of the Companies;
Common Stock (n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of than as contemplated by this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.);
Appears in 1 contract
Standstill. Effective from During the date Voting Period, each Holder hereby agrees that neither Holder nor any of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR its affiliates (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies will (and neither Holder nor such Holder’s affiliates will assist, provide or consents (including, without limitation, any solicitation of consents that seeks arrange financing to call a special meeting of stockholders or by encouraging for others or participating in any “withhold” or similar campaignencourage others to), in each casedirectly or indirectly, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, acting alone or in concert with others, representation onunless specifically requested in writing or approved in advance by the Board:
(i) acquire or agree, offer, seek or nominate any candidate propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Company Board or the FSFR Board, (iiiExchange Act) seek the removal of any member material portion of the Company Board assets or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor businesses of the Company REIT or the investment advisor of FSFR, (v) solicit consents from the Company its affiliates or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company REIT or FSFRits affiliates other than as contemplated pursuant to the Contribution Agreement, or any securities convertible into rights or exchangeable for securities issued by the Company or FSFR;
options to acquire such ownership (k) sell, offer to sell, give, pledge, grant including from a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(bthird party), Section 1.3(cor make any public announcement (or request permission to make any such announcement) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated byof the foregoing; provided, or on behalf ofhowever, that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Prio Touzet (together with their affiliates) shall be entitled to acquire, in the aggregate, ownership of a party number of shares of Common Stock equal to this Agreement or FSFR against Sellers;no greater than one percent (1%) of the total number of shares of Common Stock then outstanding; or
(mii) propose or enter into into, directly or engage in indirectly, any short sale or purchasemerger, sale or grant of any optionconsolidation, warrantrecapitalization, derivative, convertible security, stock appreciation right business combination or other similar right transaction involving the REIT or any of its affiliates; or
(includingiii) form, without limitation, any put join or call option or swap transactionenter into a group (within the meaning of Section 13(d)(4) of the Exchange Act) with respect to or having any measurement relating to any voting securities of the Companies;REIT or any of its affiliates; or
(niv) enter into any discussions, negotiations, arrangements, understanding arrangements or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection understandings with any of the foregoing, or make any investment in or enter into any arrangement third party with any other person that engages, or offers or proposes respect to engage, in any of the foregoing, or otherwise take advise, assist or cause encourage any action or make any statement inconsistent with other persons in furtherance of any of the foregoing; or
(o) take any action challenging , in each case, other than in connection with the validity or enforceability performance of this Agreement, or make or in any way advance any request or proposal that such Holder’s duties as a member of the Company, FSFR, the Company Board or the FSFR any committee thereof, if authorized by such Board amend, modify or waive any provision of this Agreementa duly authorized committee.
Appears in 1 contract
Sources: Lock Up and Voting Agreement (Parkway Properties Inc)
Standstill. Effective from Unless expressly requested to do so in writing by the Board of Directors of the Company, during the period beginning on the date of this Agreement letter agreement and continuing until ending twelve (12) months after the later date of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders this letter agreement (the “Standstill Restricted Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallus or any of our subsidiaries (which shall include entities that we control, and Sellers shall cause their respective controlled Affiliates not towhether in corporate or non-corporate form) will (individually or with others, directly or indirectly): • acquire, offer to acquire or agree to acquire (other than pursuant to an agreement disclosed to the Company in writing before the date of this letter agreement) any securities or rights to acquire securities of the Company that would result in us (alone or together with any joint actors) beneficially owning and/or having the right to exercise direction or control over securities that, in the aggregate, represent 20% or more of the votes that may be cast by shareholders or the equity of the Company, • acquire, offer to acquire or agree to acquire any mannermaterial portion of the assets of the Company or any of its subsidiaries, alone • make any solicitation of proxies to vote, or seek to advise or otherwise influence any person with respect to the voting of any securities of, the Company, • make any proposal for, or offer of, (with or without conditions) an extraordinary transaction involving the Company or any of its subsidiaries or their respective securities or assets, • engage in any discussions or enter into any agreements, commitments or understandings with any person (other than our Representatives and persons who, with the prior written consent of the Company, may also be long-term investors or may provide financing to us in connection with a Transaction and who have agreed to be bound by the provisions of this letter relating to the confidentiality and use of Information) related to any acquisition of securities or any material portion of the assets of the Company or any of its subsidiaries, • otherwise seek to influence or control the Board of Directors, management or policies of the Company or any of its subsidiaries , • seek any modification to, or waiver of, section 7 of this letter agreement, • except as required by applicable law, make any public announcement or disclosure (except to our or its Representatives or otherwise as expressly permitted pursuant to this letter agreement) of any intention, plan or arrangement with respect to any of the foregoing, • take any initiative with respect to the Company or any of its subsidiaries that reasonably would be expected to require the Company or its subsidiaries to make a public announcement, or • assist, advise or encourage any person in doing any of the foregoing (including by providing or arranging any financing). Notwithstanding anything to the contrary contained in this letter agreement, if at any time a third party that is at arm’s length to us and with whom we are not acting jointly or in concert with others:
concert: (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A commences (for the purposes of Rule 14d-2 under the Securities Exchange Act of 1934, as amended ) a tender offer or exchange offer for at least 50% of the outstanding capital stock of the Company; (b) publicly announces the “Exchange Act”) commencement of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, proxy contest with respect to securities the election of any directors of the Company; or (c) enters into a definitive agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of at least 50% of the outstanding capital stock of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) all or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions material portion of the Company’s investment advisory agreementassets, then (in any of such cases) the FSFR Board restrictions set forth above shall immediately terminate and cease to be of Directors (the “FSFR Board”)any further force or effect. Additionally, the FSFR investment advisor or the terms and conditions nothing in section 7 of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either this letter agreement shall preclude us from making a proposal to the Company relating to our acquisition of (or FSFR, of an interest in) a hotel or with respect to this Agreement, resort that is inconsistent with the provisions of this Agreement;
managed (hor that we would propose be managed) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, its subsidiaries or limit any securities convertible into rights that we may have in respect of any hotel or exchangeable for securities issued resort in which we have invested that is managed by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementsubsidiaries.
Appears in 1 contract
Standstill. Effective In connection with the Stockholder’s acquisition of the Company’s Common Stock pursuant to the Merger Agreement, the Stockholder hereby agrees that, for a period of two (2) years from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”)hereof, except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toit will not, directly or indirectly, in any manner, alone indirectly (whether through or in concert with others:
an Affiliate (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are that term is defined in Regulation 14A Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or as part of a Group (as defined Section 13d-5(b)(1) of proxies the Exchange Act)), acquire or consents offer, make a proposal or agree to acquire (whether publicly or otherwise), in any manner, any material assets of the Company or its subsidiaries, or any securities entitled to vote generally in the election of directors of the Company, or any direct or indirect rights or options or warrants to acquire any such securities or any securities convertible into or exercisable or exchangeable for such securities, whether or not such securities are so convertible, exercisable or exchangeable at the time of determination (“Voting Securities”) of the Company, except pursuant to the Merger Agreement or in connection with a stock split, stock dividend, recapitalization, reclassification or similar transaction. If the Stockholder or any of its Affiliates owns or acquires any Voting Securities in violation of this Letter Agreement, such Voting Securities shall immediately be disposed of to persons who are not Affiliates of the Stockholder; provided, however, that the Company may also pursue any other available remedy to which it may be entitled as a result of such violation. Notwithstanding the foregoing, the Stockholder may acquire additional equity securities of the Company including, without limitation, any solicitation Voting Securities (i) upon the prior approval of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), which shall not be unreasonably withheld or delayed, or (ii) in connection with a direct issuance by the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either in an amount necessary to maintain its percentage equity interest in the Company or FSFR, or with respect in such greater amount as may be agreed to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Pharmos Corp)
Standstill. Effective from the date of this Agreement and continuing until the later Each of the certification of votes for Investors agrees that, during the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallPeriod it will not, and Sellers shall it will cause their its respective controlled Affiliates Affiliates, Associates and agents and any other persons acting on his or its behalf not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any of proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignstockholders), in each case, with respect to securities of the Company Company, other than a “solicitation” or Fifth Street Senior Floating Rate Corp. (acting as a “FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities participant” in support of all of the Companies”)nominees of the Board at any stockholder meeting;
(b) make submit any shareholder proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act, either such company’s constituent documents Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fd) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with an Investor or one or more of its Affiliates or to the extent such a group may be deemed to result with the Company or any of their respective Affiliates as a result of this Agreement;
(e) engage in discussions with other stockholders of the Company, solicit proxies or written consents of stockholders or otherwise conduct any nonbinding referendum with respect to the Common Stock, or make, or in any way encourage, influence or participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any person with respect to voting or tendering, any shares of Common Stock with respect to any matter, including, without limitation, a group any Transaction (as defined under Section 13(dbelow) that is not approved by a majority of the Exchange Act Board;
(except such participation related f) call, seek to call, or request the reasonable unwinding of any such group currently existing as calling of, a special meeting of the date stockholders of this Agreement) with any person who is not identified on Schedule I hereto (any such personthe Company, or seek to make, or make, a “Third Party”), with respect to shareholder proposal at any securities meeting of the Companies or take any other action that would interfere with stockholders of the ability of Sellers to vote in accordance with this AgreementCompany;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effecteffect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist assist, solicit, encourage or facilitate any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate inin (including by tendering or selling into) (i) any acquisition of any material assets or businesses of the Company or any of its subsidiaries, (ii) any transfer or acquisition of shares of Common Stock or other securities of the Company or any securities of any Affiliate of the Company if, after completion of such transfer or acquisition or proposed transfer or acquisition, the Investors and their Affiliates or any person or group (other than the Investors and their Affiliates) would beneficially own, or have the right to acquire beneficial ownership of, more than 14.9% of the outstanding shares of Common Stock (based on the latest annual or quarterly report of the Company filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act), provided that open market sales of securities through a broker by the Investors and their Affiliates which are not actually known by the Investors to result in any transferee acquiring beneficial ownership of more than 14.9% of the outstanding shares of Common Stock shall not be included in this clause (ii) or constitute a breach of this Section 6, (iii) any tender offer or exchange offer, merger, consolidationchange of control, acquisition, scheme, arrangement, acquisition or other business combination, combination involving the Company or any of its subsidiaries or (iv) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company, FSFR or either of their investment advisors, Company or any of their its subsidiaries or joint ventures or (any of their respective securities the transactions or events described in (each, an i) through (iv) above are referred to as a “Extraordinary Transaction”), unless such Transaction has been approved by a majority of the Board and has been announced by the Company; provided, that this paragraph shall not require the Investors to vote in favor of a Transaction that was approved by the Board;
(h) publicly disclose, or make cause or facilitate the public disclosure (including, without limitation, the filing of any statement document or report with the SEC or any other governmental agency or any disclosure regarding to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal with respect to obtain any Extraordinary Transaction waiver, or this Agreement that is inconsistent with consent under, or any amendment of, any of the provisions of Section 5 hereof or this Agreement, including any intent, purpose, plan or proposal that is conditioned onSection 6, or would require otherwise seek to obtain any waiver, amendmentconsent under, nullification or invalidation of, amendment of any provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding understandings or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade assist or encourage, any Third Party to take any action or make any statement in connection with any of the foregoing, or make any investment in or enter into any arrangement with encourage any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise ; or
(j) take or cause or induce or assist others to take any action or make any statement inconsistent with any of the foregoing; or
provided, that, notwithstanding the foregoing, it is understood and agreed that this Agreement shall not be deemed to prohibit (ox) take any action challenging the validity or enforceability of this Agreement, or make or Plants from engaging in any way advance lawful act in his capacity as a director of the Company that is either expressly approved by the Board or required in order to comply with his fiduciary duties as a director of the Company or (y) solely with respect to any request or proposal Transaction that has been approved by a majority of the Board and has been announced by the Company, FSFRthe Investors from making public statements, the Company Board engaging in discussions with other shareholders, soliciting proxies or the FSFR Board amend, modify voting any shares or waive any provision of this Agreementproxies.
Appears in 1 contract
Sources: Investment Agreement (Cutera Inc)
Standstill. Effective from 7.1 During the period commencing on the date of this Agreement and continuing until the later closing of the certification Qualified IPO and ending on the latest to occur of votes for (i) the fifth anniversary of the date of closing of the Qualified IPO and (ii) the second anniversary of the expiration of the Research Program Term (as such term is defined in the License and Collaboration Agreement dated as of the date hereof between the Company 2017 Annual Meeting and the Purchaser) (unless the Common Stock ceases to be registered pursuant to Section 12 of Stockholders or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange 1934 Act”) of proxies or consents (including, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of which case the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by restrictions set forth in this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of 7 shall expire on the date of this Agreement) with any person who is not identified on Schedule I hereto (any when such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”registration ceases), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreementPurchaser agrees that, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, unless such shall have been specifically invited in writing by the Company, FSFRneither the Purchaser nor any of its Controlled Affiliates (as defined below) will in any manner, directly or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;indirectly:
(ha) effect or seek to effectseek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate encourage any other person Person to effect or seek, offer or propose (whether publicly or otherwise) to effect (i) any acquisition of any securities (or participate inbeneficial ownership thereof), or any rights to acquire any such securities (including Derivative Securities representing the right to vote or economic benefit of any such securities) in excess of thirty percent (30%) of the Company’s outstanding equity securities; (ii) any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, consolidation or other business combination, combination involving the Company; (iii) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution or other extraordinary transaction involving with respect to the Company; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the Company;
(b) form, FSFR join or either of their investment advisors, or in any of their subsidiaries or joint ventures or any of their respective securities way knowingly participate in a “group” (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal as defined under the 1934 Act) with respect to any Extraordinary Transaction or this Agreement that is inconsistent with voting securities of 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionCompany;
(ic) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekotherwise act, alone or in concert with others, representation on, or nominate any candidate to, to seek to control the Company Board or the FSFR Board, (iii) seek the removal of any member Directors of the Company (provided, that, any actions taken by the Regeneron Observer (as defined in the Second Amended and Restated Stockholders Agreement) or an individual appointed to the Board or of Directors by the FSFR BoardPurchaser pursuant to the Second Amended and Restated Stockholders Agreement, (iv) seek, alone or solely in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ such individual’s capacity as the Regeneron Observer or a Company or FSFR stockholderdirector, as applicable, shall not be deemed a violation of this clause (c));
(jd) purchase negotiate with any person with respect to, or cause make any proposal to be purchased any person with respect to, or make any public announcement or proposal or offer whatsoever with respect to, or act as a financing source for or otherwise acquire invest in any other Persons in connection with, or agree otherwise solicit, seek or offer to acquire beneficial ownership of effect any securities issued by transactions or actions described in clause (a) above or take any action which could be reasonably expected to force the Company to make a public announcement regarding any of the types of transactions or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;actions described in cause (a) above; or
(ke) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant enter into any option for the sale of discussions or otherwise transfer or dispose of (each, a “Transfer”) arrangements with any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims third party with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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 .
7.2 The Purchaser also agrees not to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board (or the FSFR Board amendits directors, modify officers, employees or agents), directly or indirectly, to amend or waive any provision of this AgreementSection 7 (including this Section 7.2); provided, that, nothing contained in this Section 7 shall prohibit the Purchaser or its Controlled Affiliates from entering into confidential, non-public discussions with the Company regarding a transaction or matter of the type described in Section 7.1(a) so long as such discussions would not reasonably be expected to require the Company to make a public announcement regarding any of the types of transactions or actions described in Section 7.1(a) above.
7.3 Notwithstanding anything to the contrary contained in this Section 7, if, at any time a third party:
(a) enters into an agreement providing for the merger, consolidation or other business combination involving the Company, in each case, the consummation of which would result in a Sale of the Company;
(b) enters into an agreement providing for the purchase or other acquisition of, or purchases or otherwise acquires, all or substantially all of the consolidated assets of the Company;
(c) enters into an agreement providing for the purchase or other acquisition of, or purchases or otherwise acquires, beneficial ownership of securities representing more than 30% of the voting power of the Company, provided, however, that if such beneficial owner enters into a standstill with the Company on substantially similar terms to those set forth in this Section 7, the foregoing threshold of beneficial ownership of securities shall instead be 50%; or
(d) commences a tender offer or exchange offer with respect to securities representing 50% or more of the voting power of the Company, unless the Company files a recommendation with the Securities and Exchange Commission within ten (10) business following the commencement of such tender offer or exchange offer pursuant to which the Board of Directors advises the Company’s stockholders to reject such tender offer or exchange offer; then, in each case, the restrictions set forth in this Section 7 shall terminate and cease to be of any further force or effect.
Appears in 1 contract
Sources: Series B Preferred Stock Purchase Agreement (Regeneron Pharmaceuticals, Inc.)
Standstill. (a) During the period commencing on the Effective from Date and ending on the earlier of (x) the occurrence of a material breach of the Partnership Agreement by the Partnership or the General Partner and (y) the date of this Agreement and continuing until on which all Class C Preferred Units have been redeemed, without the later prior written consent of the certification Board (provided that such consent shall not be required in the event of votes for fraud or gross negligence on the Company 2017 Annual Meeting part of Stockholders the Partnership or the certification of votes for the FSFR (as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”General Partner), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shallStonepeak shall not, and Sellers shall cause their respective controlled its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
indirectly (a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, whether with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) General Partner, the Partnership or any securities convertible Affiliate or exchangeable into Subsidiary thereof):
(i) acquire beneficial ownership of additional Common Units, Class C Preferred Units or exercisable for any such securities other Partnership Interests (collectively, “securities of as defined in the Companies”Partnership Agreement);
(bii) make acquire any proposal for consideration by stockholders at any annual debt or special meeting assets of the stockholders of the Company Partnership or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseits Subsidiaries;
(ciii) knowingly advise, encourage, support, instruct engage in any hostile or influence any person with respect to any of the matters covered by this Section 3.1 or takeover activities with respect to the voting Partnership or disposition the General Partner (including by means of a tender offer or soliciting proxies or written consents for purposes of any hostile or takeover activities, other than as recommended by the Board), including any merger, consolidation, recapitalization, business combination, partnership, joint venture, acquisition or similar transaction involving the Partnership or the General Partner or any of their Affiliates or their properties (excluding ▇▇▇▇▇▇▇ Energy Corporation and its subsidiaries and its and their properties);
(iv) enter into any transaction the effect of which would be to “short” any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do soPartnership;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fv) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group as defined under ” (within the meaning of Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this AgreementAct) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any voting securities of the Companies Partnership or take any other of its Affiliates in respect of any action that would interfere with the ability of Sellers otherwise prohibited pursuant to vote in accordance with this AgreementSection 3(a);
(gvi) make any disclosure, communication, announcement call (or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions participate in a group calling of) a meeting of the Company’s investment advisory agreement, limited partners of the FSFR Board Partnership for the purpose of Directors removing (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek approving the removal of any member of) the General Partner as the general partner of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor Partnership and/or electing a successor general partner of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholderPartnership;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreement.
Appears in 1 contract
Sources: Board Representation and Standstill Agreement (Sanchez Midstream Partners LP)
Standstill. Effective from (a) ▇▇▇▇ agrees that, during the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR Standstill Period (as defined below), (unless specifically requested in writing by the Company, acting through a resolution of a majority of the Company’s directors not including the First Director or the Second Director), it shall not, and shall cause each of its Affiliates or Associates (as such terms are defined in Rule 12b-2 promulgated by the Securities and Exchange Commission (“SEC”) 2017 Annual Meeting under the Exchange Act of Stockholders 1934 (the “Standstill PeriodExchange Act”) provided that the term “Associates” in such definition shall be deemed to be preceded by the word “controlled”) (collectively (with ▇▇▇▇) and individually, the “▇▇▇▇ Affiliates”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicitmake, or knowingly encourage engage in, or in any way engage in any solicitation ofparticipate in, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, any “solicitation” of “proxies” (as such terms are defined used in Regulation 14A under the Securities Exchange Act proxy rules of 1934, as amended (the “SEC but without regard to the exclusion set forth in Rule 14a1(l)(2)(iv) of the Exchange Act”) of proxies or consents (includingto vote or advise, without limitation, encourage or influence any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in person other than any “withhold” or similar campaign), in each case, ▇▇▇▇ Affiliate with respect to the voting of any securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the CompaniesCompany”) 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 (as such terms are defined or used under the Exchange Act);
(b) make any proposal for consideration by stockholders , other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any annual stockholder meeting or special voting its shares at any such meeting in its sole discretion (subject to compliance with this Agreement), or make or be the proponent of the stockholders of the Company or FSFR, whether any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents Act or otherwise), except in all cases as expressly permitted by this Agreement;
(cii) knowingly adviseform, join, encourage, supportinfluence, instruct advise or influence in any person way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons (excluding, for the avoidance of doubt, any group composed solely of ▇▇▇▇ and ▇▇▇▇ Affiliates) with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except otherwise in accordance with Section 3.4, or seek to do so;
(d) any manner agree, attempt, seek or propose to deposit any securities of the Companies Company in any voting trust or similar arrangement, or subject any securities of the Companies Company to any arrangement or agreement with respect to the voting thereofthereof (including by granting any proxy, consent or other authority to vote), except as expressly set forth in accordance with Section 3.4this Agreement;
(eiii) knowingly seek acquire, offer or encourage any person propose to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended toacquire, or is reasonably likely agree to result inacquire, directly or indirectly, whether by purchase, tender or exchange offer, through the replacement acquisition of the investment advisor control of the Company or FSFRanother person, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in by joining a partnership, limited partnership, syndicate or other group, includingthrough swap or hedging transactions or otherwise, without limitation, a group as defined under Section 13(d) any securities of the Exchange Act Company or any rights decoupled from the underlying securities of the Company that would result in ▇▇▇▇ (except together with the ▇▇▇▇ Affiliates) owning, controlling or otherwise having any beneficial or other ownership interest in 10% or more of Common Stock outstanding at such participation related time; provided that nothing herein will require Common Stock to be sold to the reasonable unwinding extent that ▇▇▇▇ and the ▇▇▇▇ Affiliates, collectively, exceed the ownership limit under this clause (iii) as the result of any such group currently existing as a share repurchase or similar Company action that reduces the number of outstanding shares of Common Stock;
(iv) other than in Rule 144 open market broker sale transactions where the identity of the date purchaser is not known and in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, the securities of this Agreement) with the Company or any rights decoupled from the underlying securities of the Company held by ▇▇▇▇ or any ▇▇▇▇ Affiliate to any person who is or entity not identified on Schedule I hereto a party to this Agreement (any such person, a “Third Party”)) that, to JANA’s or the ▇▇▇▇ Affiliate’s knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any securities publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its affiliates and associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the Companies shares of Common Stock outstanding at such time or take would increase the beneficial or other ownership interest of any Third Party who, together with its affiliates and associates, has a beneficial or other action that would interfere with ownership interest in the ability aggregate of Sellers to vote in accordance with this Agreementmore than 4.9% of the shares of Common Stock outstanding at such time;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(hv) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, schemesale of all or substantially all assets or sale, spinoff, splitoff or other similar separation of one or more business units, scheme of arrangement, business combination, recapitalization, reorganization, sale or acquisition plan of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase arrangement or other extraordinary transaction business combination involving the Company, FSFR or either of their investment advisors, Company or any of their 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 encourage, initiate or support any statement other third party in any such activity; provided, however, that this clause (v) shall not preclude the tender (or disclosure regarding action not to tender) by ▇▇▇▇ or a ▇▇▇▇ Affiliate of any intent, purpose, plan securities of the Company into any tender or proposal exchange offer or vote for or against any transaction by ▇▇▇▇ or a ▇▇▇▇ Affiliate of any securities of the Company with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or conditionTransaction;
(ivi) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including any put or call option or “swap” transaction with respect to any security (other than a broad based market basket or index)) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(vii) (iA) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFRstockholders, including by written consent, (iiB) seek, alone or in concert with others, seek representation on, or nominate any candidate to, the Company Board or the FSFR Board, except as set forth herein, (iiiC) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (vD) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (viE) conduct a referendum of stockholders, (F) present at any annual meeting or any special meeting of the Company or FSFR stockholders Company’s stockholders, or (viiG) make a request for any stockholders stockholder list or any other Company books and records in Sellers’ capacity as a Company records, whether pursuant to Section 220 of the DGCL or FSFR stockholderotherwise;
(jviii) purchase except as set forth herein, take any action in support of or make any proposal or request that constitutes: (A) controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (B) any material change in the capitalization, stock repurchase programs and practices, capital allocation programs and practices or dividend policy of the Company; (C) any other material change in the Company’s management, business or corporate structure; (D) seeking to have the Company waive or make amendments or modifications to the Company’s Restated Certificate of Incorporation or the by-laws, or other actions, that may impede or facilitate the acquisition of control of the Company by any person; (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) make or cause to be purchased made, or in any way encourage any other person to make or cause to be made, any public statement or announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise acquire disparages, defames or agree to acquire beneficial ownership of any securities issued by slanders the Company or FSFR, Affiliates thereof or any securities convertible into of their respective current or exchangeable for securities issued by former officers, directors or employees, provided that ▇▇▇▇ will, subject to the Confidentiality Agreement if executed, be permitted to make objective statements that reflect JANA’s view, as a stockholder, with respect to factual matters concerning specific acts or determinations of the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for occurring after the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) date of this Agreement;
(lx) institutemake any public disclosure, solicit announcement or joinstatement 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, provided that ▇▇▇▇ will, subject to the Confidentiality Agreement, if executed, be permitted to make objective statements that reflect JANA’s view, as a partystockholder, with respect to factual matters concerning specific acts or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against determinations of the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce occurring after the provisions date of this Agreement and Agreement;
(iixi) counterclaims enter into any discussions, negotiations, agreements or understandings with any Third Party to take any action with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) withforegoing, or advise, finance, assist, knowingly encourage or seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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 respect to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(xii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceedings against or involving the Company or any of its current or former directors or officers (including derivative actions), other than an action to enforce the provisions of this Agreement instituted in accordance with and subject to Section 8; or
(oxiii) take request, directly or indirectly, any action challenging amendment or waiver of the validity or enforceability foregoing. The foregoing provisions of this Section 2(a) shall not be deemed to prohibit (and the documents referenced in Section 1(d) including Section IX(b) of the Company’s Corporate Governance Guidelines shall not prohibit) ▇▇▇▇ or its directors, officers, partners, employees, members or agents (acting in such capacity) (“Representatives”) from communicating privately regarding or privately advocating for or against any of the matters described in this Section 2(a) with, or from privately requesting a waiver of any of the foregoing provisions of this Section 2(a) from, the Company’s directors or officers, so long as such communications or requests are in accordance with the Confidentiality Agreement, if executed, and are not intended to, and would not reasonably be expected to, require any public disclosure of such communications or requests.
(b) The Company agrees that, during the Standstill Period it shall not, and shall cause each of its Affiliates or Associates (as such terms are defined in Rule 12b‑2 promulgated by the SEC under the Exchange Act provided that the term “Associates” in such definition shall be deemed to be preceded by the word “controlled”), not to, directly or indirectly, in any manner, alone or in concert with others, make or cause to be made, or in any way advance encourage any request other person to make or proposal cause to be made, any public statement or announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, defames or ▇▇▇▇▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ Affiliates or any of their respective current or former Representatives, provided that the Company will be permitted to make objective statements that reflect the Company, FSFR, ’s view with respect to factual matters concerning specific acts or determinations of ▇▇▇▇ occurring after the Company Board or the FSFR Board amend, modify or waive any provision date of this Agreement.
(c) For purposes of this Agreement the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature.
Appears in 1 contract
Standstill. Effective from the date of this Agreement and continuing until the later of the certification of votes for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR (Except as defined below) 2017 Annual Meeting of Stockholders (the “Standstill Period”), except to the extent expressly permitted by the terms of otherwise provided in this Agreement, none without the prior written consent of the Sellers shallBoard, prior to the Termination Date, each member of the FK/MP/OT Group shall not, and Sellers shall cause their instruct each of his respective controlled Affiliates and Associates not to, directly or indirectlyindirectly (in each case, except as permitted by this Agreement):
(a) sell, assign, or otherwise transfer or dispose its shares of Common Stock, or any rights decoupled from such shares, beneficially owned by such member, other than in open market sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, to any Third Party that, to the knowledge of such member and the FK/MP/OT Group (after reasonable due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time or would increase the beneficial ownership interest of any Third Party who, together with its Affiliates and Associates, has a beneficial or other ownership interest in the aggregate of more than 4.9% of the shares of Common Stock outstanding at such time;
(i) other than pursuant to Section 1(c), 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; (ii) initiate, knowingly encourage or participate in any solicitation of proxies, consents or consent revocations in respect of any election contest or removal contest with respect to the Company’s directors; (iii) submit, initiate, make or be a proponent of any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting; (iv) initiate, knowingly encourage or participate in any solicitation of proxies, consents or consent revocations, in respect of any mannerstockholder proposal for consideration at, or other business brought before, any Stockholder Meeting, including, for the avoidance of doubt, to oppose a Company proposal that stockholders approve an Extraordinary Transaction; (v) initiate, knowingly encourage or participate in any “withhold,” “vote no,” or similar campaign with respect to any Stockholder Meeting, including, for the avoidance of doubt, with respect to opposition to a Company proposal to approve an Extraordinary Transaction; or (vi) call or seek to call, or request the call of, alone or in concert with others:
(a) solicit, or knowingly encourage or in any way engage in any solicitation of, any proxies Stockholder Meeting, whether or consents not such a meeting is permitted by the Certificate of Incorporation or become a “participant” in a “solicitation,” directly or indirectlyBy-Laws, 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 to call a special meeting of stockholders or by encouraging or participating in including any “withholdtown hall” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwisemeeting;
(c) knowingly adviseform, encourage, support, instruct join or influence in any person way participate in or with any group (other than the FK/MP/OT Group) or agreement with respect to any voting securities of the matters covered by this Section 3.1 Company, including in connection with any election or removal contest with respect to the voting Company’s directors or disposition any stockholder proposal or other business brought before any Stockholder Meeting (other than among the FK/MP/OT Group members or with one or more of the Affiliates and Associates of any securities FK/MP/OT Group member who are instructed to comply with the terms and conditions of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do sothis Agreement);
(d) agree, attempt, seek or propose to deposit any voting securities of the Companies Company in any voting trust or similar arrangement, or subject any Company voting securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek publicly, alone or encourage in concert with others, to amend any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement provision of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreementGovernance Documents;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) demand an inspection of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany’s books and records;
(g) (i) make any disclosurepublic proposal or (ii) make any public statement or otherwise seek to knowingly encourage, communicationadvise or assist any person in so encouraging or advising, announcement or statement regarding any intent, purpose, plan or proposal with respect to to: (A) any change in the FSC composition, number or term of directors serving on the Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions filling of any vacancies on the Board, (B) any change in the capitalization or dividend policy or share repurchase programs or practices of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, C) any other change in the Company’s management, FSFRgovernance, corporate structure, business, operations, strategy, affairs or policies, (D) any Extraordinary Transaction, (E) causing a class of securities of the Company to be delisted from, or the managementto cease to be authorized to be quoted on, policies any securities exchange or affairs (F) causing a class of either equity securities of the Company or FSFR, or with respect to this Agreement, that is inconsistent with become eligible for termination of registration pursuant to Section 12(g)(4) of the provisions of this AgreementExchange Act;
(h) initiate, make, publicly offer or propose to effect 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 the Company or the Board that would reasonably be expected to require a public announcement or disclosure regarding any such matter;
(i) effect or seek to effect, publicly offer or propose to effect, cause or participate in, or in any way knowingly assist or facilitate any other person to effect or seek, offer or propose to effect effect, cause or participate in, any: (i) material acquisition of any assets or businesses of the Company or any of its subsidiaries; (ii) tender offer or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase exchange or other extraordinary transaction business combination involving any of the Company, FSFR or either of their investment advisors, voting securities or any of their subsidiaries the material assets or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor businesses of the Company or the investment advisor any of FSFRits subsidiaries; or (iii) recapitalization, (v) solicit consents from restructuring, liquidation, dissolution or other material transaction with respect to the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum any of the Company or FSFR stockholders or (vii) make a request for any stockholders list its subsidiaries or any other books and records in Sellers’ capacity as a Company material portion of its or FSFR stockholdertheir businesses;
(j) purchase 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 that is prohibited under this Section 3 or otherwise take or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership any action inconsistent with any of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFRforegoing;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant publicly make or in any option for the sale of way advance publicly any request or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by proposal that the Company and/or or the Board amend, modify or waive any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) provision of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with a Stockholder Meeting, publicly disclose any vote by the FK/MP/OT Group contrary to the voting recommendations of the foregoingBoard where such vote is made in violation of this Agreement, or make any investment in or enter into any arrangement with any other person that engages, or offers or proposes to engage, in any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoingexcept as required by applicable law; or
(om) take any action challenging the validity or enforceability of this Agreement, Section 3 or make or in any way advance any request or proposal that the Company, FSFR, this Agreement unless the Company Board is challenging the validity or the FSFR Board amend, modify or waive any provision enforceability of this Agreement; provided, however, that (i) the restrictions in this Section 3 shall not prevent the FK/MP/OT Group from (A) making any factual statement as required by applicable legal process, subpoena or legal requirement from any governmental authority with competent jurisdiction over the party from whom information is sought (so long as such request did not arise as a result of action by the FK/MP/OT Group, its Affiliates or Associates), (B) communicating privately to the Company with the Company’s directors or officers (including in connection with communications pursuant to Section 4) so long as such private communications would not be reasonably determined to trigger public disclosure obligations for any party, (C) making any confidential communication to the Company that would not be reasonably expected to trigger public disclosure obligations for either party, (D) responding to inbound inquiries from a Third Party by directing such Third Party to contact a representative of the Company or refer to the Company’s publicly available disclosures, (E) taking actions in furtherance of identifying an Additional Director or Replacement Director (if applicable) so long as such actions are undertaken on a confidential basis, (F) responding to any questions from the Company’s independent registered public accounting firm, provided that such questions are unsolicited and not the result of outreach by a member of the FK/MP/OT Group, or (G) communicating with stockholders of the Company and others in a manner that does not otherwise violate this Agreement, including Sections 3(a) through 3(m) set forth above, and (ii) the restrictions in this Section 3 shall not restrict the FK/MP/OT Group from tendering or exchanging shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as the other stockholders of the Company or from participating in any such transaction that has been approved by the Board, subject to the other terms of this Agreement. For the avoidance of doubt, nothing in this Section 3 shall be deemed to limit the exercise in good faith by any New Director of his or her fiduciary duties in his or her capacity as a director of the Company.
Appears in 1 contract
Sources: Cooperation Agreement (Comtech Telecommunications Corp /De/)
Standstill. Effective from (a) For so long as (i) an Initial Stockholder Designee is on the date of this Agreement Board, (ii) a Holder Designee is on the Board and continuing until the later Initial Stockholder constitutes the Majority Approved Holders or (iii) the aggregate Percentage Ownership of the certification of votes Initial Stockholder and its Affiliates is equal to or greater than thirty-five percent (35%), and in each case for the Company 2017 Annual Meeting of Stockholders or the certification of votes for the FSFR a six (as defined below6) 2017 Annual Meeting of Stockholders month period thereafter (the “Standstill Period”), except to the extent expressly permitted by Initial Stockholder will not, and will cause its Affiliates and its and their principals, general partners, officers and employees not to, without the terms prior written consent of this Agreement, none a majority of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not toNon-Designated Directors, directly or indirectly, in any manner, alone or in concert with others:
(ai) solicit(A) on or prior to the date that is 90 days following the consummation of the Offer, acquire, offer or publicly announce its intention to acquire, by purchase or otherwise, additional shares of Common Stock or direct or indirect rights, warrants or options to acquire, or knowingly encourage securities exchangeable for or in any way engage in any solicitation ofconvertible into, any proxies Common Stock or consents or become a “participant” in a “solicitation,” directly or indirectly, (B) following the date that is 90 days following the expiration of the Offer (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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaignmay be extended), acquire, offer or publicly announce its intention to acquire, by purchase or otherwise, additional shares of Common Stock or direct or indirect rights, warrants or options to acquire, or securities exchangeable for or convertible into, Common Stock that would increase the Initial Stockholder’s and its Affiliates’ aggregate Percentage Ownership, calculated in each case, accordance with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to beneficial ownership rules set forth in Rule 14a-8 13d-3 promulgated under the Exchange Act, either to more than forty-five percent (45%) (any such company’s constituent documents additional shares of Common Stock acquired, the “Additional Shares”); provided that the Initial Stockholder and its Affiliates shall be permitted to make private offers to the Board to acquire additional shares of Common Stock or otherwiseConvertible Preferred Stock;
(cii) knowingly advisemake, encourageor in any way participate in, support, instruct any solicitation of proxies to vote or seek to advise or influence in any manner whatsoever any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any voting securities of the Companies at any annual or special meeting of stockholders Company, other than in support of the Company or FSFR, except in accordance with Section 3.4, or seek to do soCompany’s nominees;
(diii) agreemake, attemptannounce, seek disclose publicly, propose publicly or propose induce or attempt to deposit induce any securities of the Companies in other person to initiate any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4stockholder proposal;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(fiv) form, join in or in any way participate in a partnership, limited partnership, syndicate or other “group, including, without limitation, a group as defined under ” within the meaning of Section 13(d13(d)(3) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any voting securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this AgreementCompany;
(gv) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek to effectacquire, offer to acquire or propose agree to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal with respect to any 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seekacquire, alone or in concert with others, representation onany of the assets of the Company or any of its Affiliates; or
(vi) seek to propose to the stockholders any merger, business combination, restructuring, recapitalization or nominate other transaction to or with the Company; or
(vii) make any candidate topublic request or proposal to amend, waive or terminate any provision of this Section 2.4.
(b) Notwithstanding Section 2.4(a), the Initial Stockholder and its Affiliates shall not be prohibited from making any non-public proposal to the Board.
(c) Notwithstanding Section 2.4(a), if at any time during the Standstill Period, (i) the Company enters into any agreement with any third party that would result in a Change of Control, (ii) an unaffiliated third party commences a bona fide tender or exchange offer which, if consummated, would constitute a Change of Control and the Board either accepts such offer or fails to recommend that its stockholders reject such offer within ten (10) business days from the FSFR Boarddate of commencement of such offer or (iii) the Company announces a process seeking to solicit a third party to enter into a transaction which is likely to result in a Change of Control, then the standstill restrictions set forth in Section 2.4(a) shall terminate.
(d) Notwithstanding Section 2.4(a), if at any time during the Standstill Period, an unaffiliated third party commences a bona fide proxy solicitation which, if successful, would constitute a Change of Control (a “Proxy Contest”), then the restrictions set forth in Sections 2.4(a)(ii), (iii) seek the removal of any member of the Company Board or the FSFR Board, and (iv) seekshall cease to apply, alone or but only in concert with others, or respect of support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek Company’s nominees and opposition to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request such third party’s nominees for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFR, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this AgreementProxy Contest.
Appears in 1 contract
Standstill. Effective from The Initial Stockholder (or any Affiliate of the Initial Stockholder in the event the Initial Stockholder sells or otherwise transfers all or a part of the Warrants or the Warrant Shares to an Affiliate) agrees that, for the period beginning on the date of this Agreement and continuing until ending on the later earliest to occur of (x) the occurrence of a Significant Event, (y) such date that the Initial Stockholder (or any Affiliate thereof) no longer has the right to designate at least one director pursuant to the terms of Section 14(b) of this Agreement and (z) the date following the annual meeting of the certification stockholders of votes for the Company 2017 Annual Meeting at which the Initial Stockholder has declined to nominate a designee to the Board at such meeting and the Initial Stockholder has delivered written notice to the Company that is has irrevocably waived and relinquished its right to nominate any designees to the Board pursuant to the provisions of Stockholders Section 14(b) of this Agreement in the future, unless otherwise agreed or consented to by the certification Board, neither the Initial Stockholder nor any of votes for its Affiliates or representatives acting at the FSFR (as defined below) 2017 Annual Meeting direction and on behalf of Stockholders the Initial Stockholder will (the “Standstill Period”), except to the extent expressly permitted by the terms of this Agreement, none of the Sellers shall, and Sellers shall cause their respective controlled Affiliates not to, directly or indirectly, in any manner, alone or in concert with others:
(a) soliciteffect or affirmatively seek, publicly offer or publicly propose to effect or cause, or knowingly encourage or in and actively assist any way engage in any solicitation of, any proxies or consents or become a “participant” in a “solicitation,” directly or indirectly, 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 to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign), in each case, with respect to securities of the Company or Fifth Street Senior Floating Rate Corp. (“FSFR”) or any securities convertible or exchangeable into or exercisable for any such securities (collectively, “securities of the Companies”);
(b) make any proposal for consideration by stockholders at any annual or special meeting of the stockholders of the Company or FSFR, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwise;
(c) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, or seek to do so;
(d) agree, attempt, seek or propose to deposit any securities of the Companies in any voting trust or similar arrangement, or subject any securities of the Companies to any arrangement or agreement with respect to the voting thereof, except in accordance with Section 3.4;
(e) knowingly seek or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for the election or removal of directors with respect to the Company or FSFR, including any action that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote in accordance with this Agreement;
(g) make any disclosure, communication, announcement or statement regarding any intent, purpose, plan or proposal with respect to the FSC Board of Directors (the “Company Board”), the Company investment advisor or the terms and conditions of the Company’s investment advisory agreement, the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or with respect to this Agreement, that is inconsistent with the provisions of this Agreement;
(h) effect or seek third party 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 publicly propose to effect (i) any acquisition of any voting equity securities of the Company other than (x) the acquisition by the Initial Stockholder (or participate inany of its Affiliates) of beneficial ownership of (A) any of the Warrant Shares or securities issued by the Company in respect of (whether by dividend or otherwise) any warrant shares, (B) additional voting equity securities of the Company not to exceed, in the aggregate, 1% of the issued and outstanding shares of the Company’s outstanding voting securities at the time of measurement and (3) any voting equity securities issued by the Company to the Initial Stockholder’s nominees to the Board (which shall not be included in the calculation of the 1% in clause (B) above); (ii) any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, consolidation involving the acquisition of the Company other than any such transaction made or agreed to or recommended by the Company; (iii) any recapitalization, reorganization, sale or acquisition of assetsrestructuring, liquidation, dissolution, extraordinary dividend, significant share repurchase dissolution with respect to the Company or other extraordinary transaction involving any material portion of the Company, FSFR ’s business (other than as may be proposed by the Company) or either (iv) any knowing “solicitation” of their investment advisors, “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission ) or consents to vote any voting securities of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement or disclosure regarding any intent, purpose, plan or proposal the Company with respect to any Extraordinary Transaction matter not proposed or this Agreement that is inconsistent recommended (other than with respect to its nominees to 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 provision of this Agreement or take any action that could require the Company or FSFR to make any public disclosure relating Board and other than with respect to any such intent, purpose, plan, proposal or condition;
(i) (i) call or seek to call or request the calling of any meeting of stockholders at either the Company or FSFR, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate to, the Company Board or the FSFR Board, (iii) seek the removal of any member of the Company Board or the FSFR Board, (iv) seek, alone or in concert with others, or support any Third Party in seeking, to replace the investment advisor of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list or any other books and records in Sellers’ capacity as a Company or FSFR stockholder;
(j) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued matter that has been recommended by the Company or FSFR, its Board); (b) form or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, knowingly and intentionally join a “Transfer”) any securities issued by group” (as defined under the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and (ii) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction▇▇▇▇ ▇▇▇) with respect to or having any measurement relating to any the voting equity securities of the Companies;
Company (n) enter into other than any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement in connection with “group” formed solely among the Initial Stockholder and its Affiliates). For purposes of this section “Affiliates” shall not include any of the foregoingInitial Stockholder’s designees or nominees to the Board. Nothing shall restrict such directors from exercising their respective fiduciary duties as members of the Board. Nothing shall restrict or prohibit the Initial Stockholder from (x) engaging or seeking to engage in discussions (or, or make any investment in or enter into any arrangement with any other person that engagesthe consent of the Company, or offers or proposes to engage, in negotiations) with the Company regarding any of the foregoingtransactions or actions of the type prohibited or restricted by the foregoing so long as the Initial Stockholder seeks to do so on a direct and consensual basis (and the Company may, from time to time, as determined in its sole discretion, grant any waiver of the restrictions or otherwise take prohibitions set forth in this Section 14(i)(a) and no such waiver shall require a written amendment to this Agreement)). Nothing in this Agreement shall prohibit or cause any action limit the Initial Stockholder or make any statement inconsistent with any of its Affiliates from making any public disclosure or filing that such person reasonably determines in good faith, after consultation with counsel, is required pursuant to the foregoing; or
1934 Act or the rules and regulations promulgated thereunder or any form or schedule filed pursuant thereto (oprovided that, the foregoing shall not include Schedule TO to the extent the prohibitions and restrictions set forth in clause (a)(ii) take any action challenging of the validity or enforceability first sentence of this Agreement, or make or Section 14(i) remain in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementeffect).
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Standstill. Effective from (a) During the date of this Agreement and continuing until Standstill Period, unless otherwise (i) approved by the later of the certification of votes for Board or by the Company 2017 Annual Meeting or (ii) as required by reason of Stockholders employment in a broker-dealer or as a broker-dealer in the certification ordinary course, each MDB Party shall not directly or indirectly:
(i) make any public announcement or proposal with respect to, or offer, seek, propose or indicate an interest in, (A) any form of votes business combination or acquisition or other transaction relating to a material amount of assets or securities of ClearSign or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to ClearSign or any of its subsidiaries, or (C) any form of tender or exchange offer for the FSFR shares of Common Stock, whether or not such transaction involves a Change of Control (as defined below) 2017 Annual Meeting of Stockholders ClearSign;
(the “Standstill Period”)ii) in respect of those matters enumerated in Section 2 hereof, except engage in any solicitation of proxies or written consents to the extent expressly permitted by the terms vote any voting securities of this AgreementClearSign, none or conduct any type of the Sellers shallbinding or nonbinding referendum with respect to any voting securities of ClearSign, and Sellers shall cause their respective controlled Affiliates not toor assist or participate in any other way, directly or indirectly, in any manner, alone solicitation of proxies (or in concert written consents) with others:
(a) solicitrespect to, or knowingly encourage or in any way engage in any solicitation from the holders of, any proxies voting securities of ClearSign or consents or otherwise become a “participant” in a “solicitation,” directly or indirectly, 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 1934, as amended (the “Exchange Act”) ), to vote any securities of proxies or consents ClearSign (includingincluding by initiating, without limitation, any solicitation of consents that seeks to call a special meeting of stockholders or by encouraging or participating in any “withhold” or similar campaign);
(iii) sell, in each caseoffer or agree to sell directly or indirectly, with respect to through swap or hedging transactions or otherwise, the securities of ClearSign or any rights decoupled from the Company underlying securities held by any of the MDB Parties to any person not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of ClearSign or Fifth Street Senior Floating Rate Corp. (D) an Affiliate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “FSFRThird Party”) that would knowingly (after due inquiry) result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any beneficial or other ownership interest representing in the aggregate in excess of (4.9%) of the shares of Common Stock outstanding at such time;
(iv) take any public action in support of or make any public proposal or request that constitutes: (A) advising, controlling, changing or influencing any director or the management of ClearSign, including, but not limited to, any plans or proposals, and/or consenting to the calling of any special meeting of stockholders to effect such plans or proposals, to change the number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of ClearSign, (C) any other material change in ClearSign’s management, business or corporate structure, (D) seeking to have ClearSign waive or make amendments or modifications to the Articles of Incorporation, as amended, and/or the Bylaws of ClearSign (together, the “Governing Materials”) or any securities convertible other actions that may impede or exchangeable into or exercisable for facilitate the acquisition of control of ClearSign by any such securities person, (collectively, “E) causing a class of securities of ClearSign 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 ClearSign to become eligible for termination of registration pursuant to Section 12(g)(4) of the Companies”)Exchange Act;
(bv) make any proposal for consideration act by stockholders at any annual making public announcements or special meeting speaking to reporters or members of the stockholders media (whether “on the record” or on “background” or “off the record”), to seek to influence ClearSign’s stockholders, management or the Board with respect to ClearSign’s policies, operations, balance sheet, capital allocation, marketing approach, business configuration, Extraordinary Transactions or strategy or to obtain representation of the Company Board or FSFRseek the removal of any director in any manner, whether pursuant to Rule 14a-8 under the Exchange Act, either such company’s constituent documents or otherwiseexcept as expressly permitted by this Agreement;
(cvi) knowingly advise, encourage, support, instruct or influence any person with respect to any of the matters covered by this Section 3.1 or with respect to the voting or disposition of any securities of the Companies at any annual or special meeting of stockholders of the Company or FSFR, except in accordance with Section 3.4, call or seek to do socall, or request the call of, alone or in concert with others, any meeting of stockholders, whether or not such a meeting is permitted by the Governing Materials, including a “town hall meeting”;
(dvii) agree, attempt, seek or propose to deposit any securities shares of the Companies Common Stock in any voting trust or similar arrangement, or subject any securities shares of the Companies Common Stock to any arrangement or agreement with respect to the voting thereofof any shares of Common Stock (other than any such voting trust, except in accordance with Section 3.4;
(e) knowingly seek arrangement or encourage any person to submit nominations in furtherance of a “contested solicitation” or take other action for agreement solely among the election or removal of directors with respect to the Company or FSFR, including any action MDB Parties that is intended to, or is reasonably likely to result in, the replacement of the investment advisor of the Company or FSFR, or a modification to the terms or conditions of either the Company’s or FSFR’s investment advisory agreement;
(f) form, join in or in any way participate in a partnership, limited partnership, syndicate or other group, including, without limitation, a group as defined under Section 13(d) of the Exchange Act (except such participation related to the reasonable unwinding of any such group currently existing as of the date of this Agreement) with any person who is not identified on Schedule I hereto (any such person, a “Third Party”), with respect to any securities of the Companies or take any other action that would interfere with the ability of Sellers to vote otherwise in accordance with this Agreement) the intention of which is to circumvent any of the restrictions on the MDB Parties under this Agreement;
(gviii) make form, join or in any disclosure, communication, announcement or statement regarding other way participate in any intent, purpose, plan or proposal “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the FSC Board Common Stock; provided, however, that nothing herein shall limit the ability of Directors (an Affiliate of an MDB Party to join the “Company Board”)group” with any other MDB Party or Affiliate thereof following the execution of this Agreement, the Company investment advisor or so long as any such Affiliate agrees in writing to be subject to, and bound by, the terms and conditions of this Agreement and, if required under the Company’s investment advisory agreementExchange Act, files a Schedule 13D or an amendment thereof, as applicable, within five (5) business days after disclosing that the FSFR Board of Directors (the “FSFR Board”), the FSFR investment advisor or the terms and conditions of FSFR’s investment advisory agreement, the Company, FSFR, or the management, policies or affairs of either the Company or FSFR, or MDB Party has formed a group with respect to this Agreement, that is inconsistent with the provisions of this Agreementsuch Affiliate;
(hix) effect or seek to effect, offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, any tender or exchange offer, merger, consolidation, acquisition, scheme, arrangement, business combination, recapitalization, reorganization, sale or acquisition of assets, liquidation, dissolution, extraordinary dividend, significant share repurchase or other extraordinary transaction involving the Company, FSFR or either of their investment advisors, or any of their subsidiaries or joint ventures or any of their respective securities (each, an “Extraordinary Transaction”), or make any statement request or submit any proposal to amend or waive the terms of this Section 4 other than through non-public communications with ClearSign that would not be reasonably likely to trigger public disclosure regarding obligations for any Party;
(x) comment publicly about or disclose in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal with respect to any Extraordinary Transaction transactions involving ClearSign, any director or the Company’s management, policies, strategy, operations, financial results or affairs, any of its securities or assets, or this Agreement that is inconsistent with the provisions of this Agreement; or
(xi) enter into any discussions, including negotiations, agreements or understandings with any intentperson with respect to any action that the MDB Parties are prohibited from taking pursuant to this Section 4. Notwithstanding anything to the contrary contained in this Section 4, purposethe MDB Parties shall not be prohibited or restricted from: (A) communicating privately with the Board or any officer or director of ClearSign, plan in the manner set forth for communicating with the Company in the Company Policies, regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any of the MDB Parties or proposal their respective Affiliates or ClearSign or its Affiliates or any Third Party, subject in any case to any confidentiality obligations to ClearSign of any such director or officer and applicable law, rules or regulations; 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 is conditioned onhas, or would require waivermay have, amendmentjurisdiction over any MDB Party or (C) generally fulfilling its obligations to its clients in its role as a broker-dealer or an employee of a broker-dealer, nullification or invalidation of, any provision provided that a breach by the MDB Parties of this Agreement or take any action that could require is not the Company or FSFR to make any public disclosure relating to any such intent, purpose, plan, proposal or condition;cause of the applicable requirement.
(ib) The provisions of this Section 4 shall not limit in any respect the actions of any director of ClearSign in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to ClearSign and its stockholders and any then applicable Company policies (i) call or it being understood and agreed that neither the MDB Parties nor any of their Affiliates shall seek to call or request the calling of any meeting of stockholders at either the Company or FSFRdo indirectly through J▇▇ ▇▇▇▇▇▇▇ and/or B▇▇▇▇ ▇▇▇▇ (or, including by written consent, (ii) seek, alone or in concert with others, representation on, or nominate any candidate toas applicable, the Company alternate director candidate identified, selected and mutually agreed upon by the Board or the FSFR Board, (iiiand M▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇) seek the removal of anything that would be prohibited if done by any member of the Company Board MDB Parties or their Affiliates). The provisions of this Section 4 shall also not prevent the FSFR BoardMDB Parties from freely voting their shares of Common Stock (except as otherwise provided in Sections 2 and 4 hereto).
(c) During the Standstill Period, (iv) seek, alone each MDB Party shall refrain from taking any actions which could have the effect of encouraging or in concert with others, or support any Third Party in seeking, to replace the investment advisor influencing other stockholders of the Company or the investment advisor of FSFR, (v) solicit consents from the Company or FSFR stockholders or otherwise act or seek to act by written consent, (vi) conduct a referendum of the Company or FSFR stockholders or (vii) make a request for any stockholders list ClearSign or any other books and records persons to engage in Sellers’ capacity actions which, if taken by any MDB Party, would violate this Agreement, except as may be required by reason of such MDB Party’s role as or employment in a broker-dealer or as a Company or FSFR stockholder;broker-dealer in the ordinary course.
(jd) purchase or cause Notwithstanding anything contained in this Agreement to be purchased or otherwise acquire or agree to acquire beneficial ownership of any securities issued by the Company or FSFRcontrary, or any securities convertible into or exchangeable for securities issued by the Company or FSFR;
(k) sell, offer to sell, give, pledge, grant a security interest in, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of (each, a “Transfer”) any securities issued by the Company and/or any securities convertible into or exchangeable for securities issued by the Company, unless any Buyer fails to timely perform each of its obligations under Section 1.2(b), Section 1.3(c) and/or Section 1.3(d)(i) of this Agreement;
(l) institute, solicit or join, as a party, or knowingly assist any other person in instituting, soliciting or joining, any litigation, arbitration or other proceeding against the Company or FSFR or any of their current or former directors or officers (including derivative actions), other than (i) litigation to enforce the provisions of this Agreement and shall automatically terminate upon the occurrence of a Change of Control transaction (iias defined below) counterclaims with respect to any proceeding initiated by, or on behalf of, a party to this Agreement or FSFR against Sellers;
(m) enter into or engage in any short sale or purchase, sale or grant of any option, warrant, derivative, convertible security, stock appreciation right or other similar right (including, without limitation, any put or call option or swap transaction) with respect to or having any measurement relating to any securities of the Companies;
(n) enter into any negotiations, arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist, seek to knowingly persuade or encourage, any Third Party to take any action or make any statement 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, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(o) take any action challenging the validity or enforceability of this Agreement, or make or in any way advance any request or proposal that the Company, FSFR, the Company Board or the FSFR Board amend, modify or waive any provision of this Agreementinvolving ClearSign.
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