Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee): (i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person; (ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any: (A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or (B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses; (iii) engage in short sales of any of the Equity Securities held by the Investor; (iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board; (v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates; (vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or (vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”). (b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 2 contracts
Sources: Transfer Agreement (Excellon Resources Inc), Acquisition Agreement (Excellon Resources Inc)
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other person, during During the Restricted Period, without unless (i) the prior consent Investor receives approval of a majority of the BoardIndependent Directors, such consent being determined by or (ii) a simple majority vote bona-fide third party not directly or indirectly Affiliated or Associated with or acting at the direction or suggestion of the Board Investor (excluding or is not otherwise a member of a Group with the vote Investor) has publicly announced an intention (individually or with another Person other than the Investor or an Affiliate or Associate of the Investor or any Investor Nominee):Group member) to commence an offer to acquire control of a majority of the outstanding voting shares of the Company (a “Third Party Announcement”), none of the Investor, the Investor’s Affiliates or its or their directors, officers, employees, agents or advisors will, directly or indirectly:
(i) except pursuant to the Investor’s rights under Section 3.1, acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase or otherwise, (Aa) commence a take-over bid for any that number of securities or direct or indirect rights to acquire that number of securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation Company or any of its subsidiaries or disposition Subsidiary that would result in a Beneficial Ownership Percentage of more than a majority 49.99%, or (b) all or substantially all of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personCompany;
(ii) enter into except as otherwise permitted under this Agreement, make or propose, offer or agree to enter into or engage in any negotiations way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Commission) to vote any voting securities of the Company or any Subsidiary, or seek to advise or influence any Person with respect to any:
(A) acquisition, amalgamation, plan the voting of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to any voting securities of the Corporation Company or any of Subsidiary, except with respect to securities Beneficially Owned by the Investor or its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businessesAffiliates;
(iii) engage in short sales make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any Subsidiary or any of the Equity Securities held by the Investorits or their securities or assets, except for an offer or proposal that complies with Section 3.7(c);
(iv) solicit proxies from shareholders enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in in, a group to so solicit, other than any solicitation “group” within the meaning of proxies voting in favour Section 13(d)(3) of the nominees of management Exchange Act in connection with any of the Corporation for election foregoing, except with respect to the Boardan offer or proposal that complies with Section 3.7(c);
(v) present or request to present at any meeting of the securityholders of the Corporation Company, its Affiliates or any of its affiliates or through action by written consent their directors, officers, employees, agents or advisors, directly or indirectly, to amend or waive any proposal for consideration for action by securityholders, requisition a meeting provision of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates this Section 3.7(a) (other than pursuant to the nomination rights expressly set forth in including this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;sentence); or
(vi) advise, assist take or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take cause to be taken any action in furtherance of any of the foregoing, (each, a “Hostile Action”).
(b) The provisions Investor will promptly advise the Company of any inquiry or proposal made to the Investor with respect to any of the matters set forth under Section 5.3 shall cease to apply3.7(a) during the Restricted Period.
(c) After the Restricted Period, and the Investors shall be permitted to take Investor will not acquire, directly or indirectly, by purchase or otherwise, that number of securities of the Company that would result in a Hostile Action, from and after: Beneficial Ownership Percentage of sixty-five percent (65%) or greater unless either (i) a Third Party Announcement has occurred, or (ii) the commencement or public announcement of a take-over bidInvestor acquires such securities pursuant to either, which if completed would result in the acquisition of more than 50% Investor’s sole discretion, (y) a tender or exchange offer to acquire all of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into Company not Beneficially Owned by the Corporation of, Investor or its Affiliates; provided that such offer is approved by the public announcement holders of a majority of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation Company that are not Beneficially Owned by the Investor or more than its Affiliates, or (z) a merger or other negotiated transaction with the Company; provided that such merger or other negotiated transaction with the Company is approved by a majority of the assets Independent Directors and the holders of a majority of the Corporationoutstanding voting securities of the Company that are not Beneficially Owned by the Investor or its Affiliates.
(d) Notwithstanding Sections 3.7(a) or (c), in the event any of the Notes are outstanding, unless the Beneficial Ownership Percentage is at least sixty-five percent (65%), the Investor agrees (and will cause its Affiliates) not to take any action that would reasonably be expected to trigger a Make-Whole Change in Control.
Appears in 2 contracts
Sources: Shareholder Agreement (Solarfun Power Holdings Co., Ltd.), Shareholder Agreement (Hanwha Solar Holdings Co., Ltd.)
Standstill. The Purchaser agrees that from the date hereof until the date upon which the Purchaser holds less than 75,000,000 shares of Common Stock (a) The Investors shall not (and they shall cause their respective affiliates to notas adjusted for any stock splits, stock dividends, recapitalizations or the like), in any mannerassuming the conversion of all of the outstanding shares of the Series A Preferred into Common Stock and also assuming the conversion of all of the outstanding shares of the Series B Preferred into Common Stock as if it were convertible into Common Stock on the same basis as the Series A Preferred, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, will not without the prior written consent of the Board, such consent being determined by a simple majority vote Issuer or the Issuer's Board of the Board (excluding the vote of any Investor Nominee):
Directors: (i) (A) commence a take-over bid for acquire, offer to 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 the CorporationIssuer or any wholly-owned Subsidiary thereof, or of any successor corporation; (Bii) effectmake, seekor in any way participate in, offer directly or propose indirectly, any take-over bid"solicitation" of "proxies" (as such terms are used in the Rules of the Commission) to vote, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation seek to advise or influence any other person or entity with respect to the Corporation or voting of, any of its subsidiaries or disposition of more than a majority voting securities of the assets of the CorporationIssuer; (iii) make any public announcement with respect to, or (C) purchase make an unsolicited proposal for, or offer of any Common Shares or Convertible Securities, except in connection with extraordinary transaction involving the acquisition of a person that holds Common Shares the Issuer or Convertible Securities by the Investor its securities or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businessesassets; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or in any way participate in a group to so solicit, other than any solicitation of proxies voting "group" (as defined in favour Section 13(d)(3) of the nominees of management of the Corporation for election to the Board;
(vExchange Act) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” connection with any such person) proposing any of the foregoing; or
(viiv) make transfer any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by to any person or group "group" in connection with any of persons; the foregoing or (iivi) request the approval Issuer or entering into by the Corporation of, or the public announcement any of the approval Issuer's representatives to amend or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by waive any person or group provision of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationthis Section 6.2.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Marchfirst Inc), Stock Purchase Agreement (Francisco Partners Lp)
Standstill. (a) The Investors Without the prior written approval of the Board, during the Restriction Period, the Stockholder shall not (not, and they shall cause their respective affiliates to not)each of its Affiliates not to, directly or indirectly, in any manner, directly, indirectly or jointly alone or in concert with any other Persons, (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, during by joining a partnership, limited partnership, syndicate or group (within the Restricted Period, without the prior consent meaning of Section 13(d) of the BoardExchange Act), such consent being determined by a simple majority vote through swap or hedging transactions or otherwise, any securities of the Board Company or any rights decoupled from the underlying securities, in either case, that would result in the Stockholder (excluding together with its Affiliates), having Beneficial Ownership in more than 9.9% in the vote aggregate of any Investor Nominee):
the shares of the Company Common Stock outstanding at such time, (iii) (A) commence a take-over bid for make, engage in, or in any securities way knowingly participate in, directly or indirectly, any “solicitation” of proxies (as such terms are used in the proxy rules of the Corporation; SEC but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv)) or become a “participant” in any contested “solicitation” (as such terms are defined or used under the Exchange Act) for the election of directors with respect to the Company, in each case, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at any stockholder meeting or (B) effectmake or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise), seek(iii) enter, agree to enter, publicly propose or publicly offer or propose to enter into any take-over bid, amalgamation, merger, arrangement, business combination, re-organizationrecapitalization, restructuring restructuring, change in control transaction or liquidation other similar extraordinary transaction involving the Company (unless such transaction is affirmatively recommended by the Board) or (iv) enter into any agreements with any third party with respect to taking any of the Corporation actions set forth in the foregoing clauses (i), (ii) and (iii); provided that, notwithstanding the foregoing, nothing in this Section 6.3 shall restrict or prohibit (A) the Stockholder Designee from taking any action, or refraining from taking any action, which he or she determines is necessary or appropriate in light of his or her fiduciary duties as a Director, (B) the ability of the Stockholder to Sell shares of Company Common Stock to the extent permitted pursuant to Sections 5.2 or 5.3 or acquire shares of Company Common Stock pursuant to Section 6.4 (or any New Securities issued pursuant to Section 6.4), in each case, subject to and in accordance with the terms of this Agreement, and (C) compliance by the Stockholder with, or the exercise by the Stockholder of any of its subsidiaries or disposition rights under, this Agreement. For the avoidance of more than a majority doubt, the parties hereto acknowledge and agree that the Stockholder and the Stockholder Representatives engaging in discussions with, and responding to inquiries from, current and former directors and executive officers, investment bankers and other industry participants regarding the Stockholder’s investment in the Company, the nature of the assets Company Business and partnership, transaction or other opportunities involving the Company or the Stockholder shall not be subject to or constitute a violation of this Section 6.3 so long as they are without the Corporationpurpose or intent of taking any action set forth in the foregoing clauses (i), or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
and (iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 2 contracts
Sources: Stockholders Agreement (SAFG Retirement Services, Inc.), Stockholders Agreement (SAFG Retirement Services, Inc.)
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without Without the prior consent written approval of the Board, such consent being determined by a simple majority vote from the date hereof until the date that is six (6) months after the date hereof, Investor shall not, and shall cause each of the Board (excluding the vote of any Investor Nominee):
its controlled Affiliates not to, directly or indirectly: (i) (A) commence a take-over bid or publicly propose to commence any tender or exchange offer for any securities of the Corporation; (B) effect, seek, offer Company or publicly propose to enter any take-over bid, amalgamation, merger, arrangementconsolidation, business combination, re-organization, restructuring combination or liquidation with respect to the Corporation or any of its subsidiaries acquisition or disposition of more than a majority all or substantially all of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
Company; (ii) enter into nominate for election, or proposeseek to elect, offer any individual as a Director, other than as contemplated by Section 4.01 of this Agreement; (iii) publicly propose any recapitalization, restructuring, liquidation, dissolution or agree to enter into or engage in any negotiations other similar extraordinary transaction with respect to any:
the Company; (Aiv) acquisitionacquire or publicly propose to acquire any right to direct the voting or disposition of, amalgamationor any other right with respect to, plan equity securities of arrangementthe Company (including Company Common Stock), mergerin each case, to the extent the Investor and its Affiliates would, after exercising the Warrant, collectively control greater than 9.9% of the Total Voting Power of the Company; (v) form, join or knowingly participate in a “partnership, limited partnership, syndicate, or other group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) for purposes of acquiring, holding, voting or disposing of any securities of the Company; or (vi) dispose of Company Common Stock in response to an unsolicited tender offer for securities of the Company or other proposed business combination to the Person making such unsolicited tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation proposal or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuringAffiliates, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than except pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoingan Exempt Transfer; or
(vii) make any public announcement proposal for additional representation on the Board, not otherwise permitted under Section 3.01; or take (viii) enter into any action agreements with any third party with respect to taking any of the actions set forth in furtherance of the foregoing clauses (i) through (vii); provided that, notwithstanding the foregoing, (each, a “Hostile Action”).
(b) The provisions of nothing in this Section 5.3 3.01 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and afterrestrict or prohibit: (iA) the commencement Investor Designee (as defined below) from taking any action, or public announcement of a take-over bidrefraining from taking any action, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person he or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.she determines is
Appears in 1 contract
Sources: Investor Rights Agreement (Ambac Financial Group Inc)
Standstill. (a) The Investors Each Purchaser shall not (and they shall cause their respective affiliates to notits Affiliates not to), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without the prior written consent of the Board, such consent being determined by a simple majority vote Company's Board of the Board (excluding the vote of any Investor Nominee):Directors:
(ia) (A) commence a take-over bid for any securities of the Corporation; (B) effectacquire, seekannounce an intention to acquire, offer or propose to acquire or agree to acquire, directly or indirectly, any take-over bidvoting securities of the Company as a result of which acquisition the Purchasers (and their Affiliates), amalgamationcollectively, mergerwould beneficially own more than 32.5% of the outstanding capital stock of the Company on a fully diluted basis, arrangement, business combination, re-organization, restructuring other than acquisitions by way of share dividends or liquidation with respect other distributions pro rata to holders of voting securities;
(b) propose that the Corporation Purchasers or any of its subsidiaries or disposition of more than a majority Affiliates of the assets of Purchasers enter into, directly or indirectly, any merger or other business combination involving the CorporationCompany or propose to purchase, directly or (C) purchase any Common Shares or Convertible Securitiesindirectly, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation Company or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businessesSubsidiaries;
(iiic) engage make, or in short sales any way participate in, 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 the Equity Securities held by Company (whether or not such solicitation is subject to regulation under Regulation 14A promulgated under the InvestorExchange Act);
(ivd) solicit proxies from shareholders or form, join or participate in or encourage the, formation of a group to so solicit"group" with any person (within the meaning of Section 13(d)(3) of the Exchange Act), other than with the Purchaser's Affiliates, any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Boardother Purchaser and such other Purchaser's Affiliates;
(ve) present or request to present at deposit any meeting voting securities of the securityholders of Company into a voting trust or subject any such voting securities to any arrangement or agreement with respect to the Corporation voting or disposition thereof (other than any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of that may be effected among the securityholders of the Corporation or any of its affiliatesPurchasers and their Affiliates);
(f) initiate, propose or request otherwise solicit stockholders of the Company for the approval of one or more stockholder proposals with respect to propose the Company as described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce any nominee for other person to initiate any such stockholder proposal with respect to the Company;
(g) except in accordance with Section 3 of this Agreement, seek election to or seek to place a representative on the Company's Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) Directors or seek the removal of any member of the Company's Board or the board of directors of any of the Corporation’s affiliatesDirectors;
(vii) advisesolicit, assist seek to effect, negotiate with or encourage provide non-public information to any other person with respect to, (including forming a “group” with ii) make any such person) proposing statement or proposal, whether written or oral, to the Company's Board of Directors or any director or officer of the foregoing; or
Company with respect to, or (viiiii) otherwise make any public announcement or proposal whatsoever with respect to, any form of business combination transaction (with any person) involving a change of control of the Company or the acquisition of a substantial portion of the equity securities or assets of the Company or any of its Subsidiaries, including a merger, consolidation, tender offer, exchange offer or liquidation of the Company's assets, or any restructuring, recapitalization or similar transaction with respect to the Company or any of its Subsidiaries; PROVIDED, HOWEVER, that the foregoing shall not (A) apply to discussions between or among the Purchasers, their Affiliates or any of their employees, agents or representatives or (B) in the case of clause (ii) above, limit the ability of any designee of the Purchasers on the Company's Board of Directors to make any such statement or proposal or to discuss any such proposal with any officer or director of or advisor to the Company or advisor to the Company's Board of Directors unless, in either case, it would reasonably be expected to require the Company to make a public announcement regarding such discussion, statement or proposal;
(i) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of the Company (except for (A) voting in its full discretion as a holder of voting securities in accordance with the terms of such voting securities and, if applicable, together with the other Purchasers and the Purchasers' Affiliates and (B) actions taken as a director of the Company);
(j) request, or take any action in furtherance to obtain, any list of the foregoing, (each, a “Hostile Action”).
(b) The provisions holders of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by Company for the purpose of accomplishing any person of the actions in Sections 4(a)-(i) hereof;
(k) publicly disclose any intention, plan or group of persons; or (ii) arrangement inconsistent with the approval or entering into by the Corporation offoregoing, or make any such disclosure privately if it would reasonably be expected to require the Company to make a public announcement regarding such intention, plan or arrangement; or
(l) advise, assist (including by knowingly providing or arranging financing for that purpose) or knowingly encourage any other person in connection with any of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationforegoing.
Appears in 1 contract
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other personExecutive agrees that, during the Restricted Period, without the prior consent approval of a majority of the members of the Board, such consent being determined by a simple majority vote Executive will not and will cause his Affiliates or any persons with whom any of the Board foregoing has formed a “group” (excluding within the vote meaning of any Investor Nominee):
(iSection 13(d)(3) of the Exchange Act) (Ain each case, including any applicable successors and assigns) commence a take-over bid for not to (together, the “Restricted Persons”) (a) make any securities of the Corporation; (B) effectpublic announcement with respect to, seekenter into any agreement to, offer or seek or propose to enter into, directly or indirectly any take-over bidtender or exchange offer, amalgamationrestructuring, recapitalization, merger, arrangement, acquisition transaction or other business combination, re-organization, restructuring or liquidation with respect to combination involving the Corporation Company or any of its subsidiaries or disposition their securities or assets, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of more than a majority “proxies,” “consents” or “authorizations” (as such terms are used in the proxy rules of the assets of Securities and Exchange Commission promulgated under the CorporationExchange Act) to vote, or (C) purchase seek to advise or influence any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
the voting of, any common stock of the Company (Athe “Common Stock”) acquisitionor any other securities of the Company entitled to vote in the election of directors of the Company, amalgamationor securities convertible into, plan or exercisable or exchangeable for common stock or such other securities (collectively, “Voting Securities”), or securities of arrangementany of the Company’s subsidiaries or call a special stockholders’ meeting or make a stockholder proposal (including pursuant to Rule 14a-8 under the Exchange Act) for any such purpose, merger(c) otherwise act, tender offer alone or take-over bidin concert with others, exchange offer to seek representation or other business combination transaction relating to control, control or change the Corporation Board, governing instruments, stockholders, policies or affairs of the Company or any of its affiliates subsidiaries, (d) directly or indirectly enter into negotiations, arrangements or understandings with any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of other person with respect to any of the Equity Securities held by the Investor;
foregoing activities or propose any of such activities, (ive) solicit proxies from shareholders or form, join or in any way form, join or in any way participate in a group to so solicit, other than any solicitation “group” (within the meaning of proxies voting in favour Section 13(d)(3) of the nominees of management Exchange Act) in connection with any Voting Securities, or securities of the Corporation for election Company’s subsidiaries or 5 investments, (f) purchase or cause to the Board;
be purchased (vor sell short) present or request otherwise acquire or agree to present at acquire beneficial, economic or other ownership interest of any meeting Voting Securities or debt of the securityholders Company or any securities or debt of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting subsidiaries of the securityholders of the Corporation or any of its affiliatesCompany, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member exercise of the Board Warrants; (g) make a public announcement regarding or take any action which might force the board Company or any of directors of its subsidiaries to make a public announcement regarding any of the Corporation’s affiliates;
types of matters set forth above, (vih) make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board, the Company or its Subsidiaries, its management, policies or affairs or any of its securities or assets or this Agreement or (i) have any discussions or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, assist or encourage or finance any other person (including forming a “group” in connection with any such person) proposing any of the foregoing; or
(vii) make any public announcement . Executive agrees that he will not and will cause the Restricted Persons not to publicly request or take any action in furtherance of propose that the foregoingCompany waive, (each, a “Hostile Action”).
(b) The terminate or amend the provisions of Section 5.3 6(a) of this Agreement. For purposes of this Agreement, the term “Affiliate” shall cease to applyhave the respective meanings set forth set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any successor statute; and the Investors term “person” shall be permitted to take a Hostile Actionmean any individual, from and after: corporation (i) the commencement including not-for-profit), general or public announcement limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person kind or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationnature.
Appears in 1 contract
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not), Unless approved in any manner, directly, indirectly or jointly or advance in concert with any other person, during writing by the Restricted Period, without the prior consent board of directors of the BoardCompany, such consent being determined by ▇▇▇▇▇▇▇▇▇ agrees that it will not, for a simple majority vote period of two (2) years following the Board (excluding the vote date of this agreement, directly or indirectly through any Investor Nominee):of its Affiliates:
(i) (A) commence a take-over bid for make any securities statement or proposal to the board of directors of the Corporation; Company, any of the Company’s Representatives (Bas defined below) effector any of the Company’s stockholders regarding, or make any public announcement, proposal, or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek, or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or propose media): (i) any take-over bid, amalgamationbusiness combination, merger, arrangementtender offer, business combinationexchange offer, re-organization, restructuring or liquidation with respect to similar transaction involving the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationsubsidiaries, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation liquidation, or similar transaction involving the Corporation Company or any of its affiliates or any part of their respective assets or businesses;
subsidiaries, (iii) engage in short sales any acquisition of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders Company’s securities or formassets, join or participate rights or options to acquire interests in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the CorporationCompany’s affiliates securities (other than pursuant to the nomination rights expressly set forth exercise of its right to participate in this Agreementa Subsequent Financing pursuant to Section 5(b)), or assets, (iv) or any proposal to seek the removal of any member of the Board or representation on the board of directors of any the Company or otherwise seek to control or influence the management, board of directors, or policies of the Corporation’s affiliatesCompany, (v) any request or proposal to waive, terminate, or amend the provisions of this agreement, or (vi) any proposal, arrangement, or other statement that is inconsistent with the terms of this agreement, including this Section 5(c)(i);
(viii) adviseinstigate, encourage, or assist or encourage any person third party (including forming a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with any such personthird party) proposing to do, or enter into any discussions or agreements with any third party with respect to, any of the foregoingactions set forth in Section 5(c)(i);
(iii) take any action that would reasonably be expected to require the Company to make a public announcement regarding any of the actions set forth in Section 5(c)(i); or
(viiiv) make acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any public announcement securities, or take any action in furtherance assets of the Company, other than pursuant to Section 5(b). Notwithstanding the foregoing, (each, a “Hostile Action”).
(bthe restrictions set forth in this Section 5(c) The provisions shall terminate and be of Section 5.3 shall cease to apply, no further force and the Investors shall be permitted to take a Hostile Action, from and aftereffect if: (i) the commencement Company enters into a definitive agreement with respect to, or public announcement of publicly announces that it plans to enter into, a take-over bid, which if completed would result in the acquisition of transaction involving more than 50% of the then outstanding voting Company’s equity securities or all or substantially all of the Corporation Company’s assets (whether by any person merger, consolidation, business combination, tender or group of persons; exchange offer, recapitalization, restructuring, sale, equity issuance, or otherwise), or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of “group” publicly announces or commences a tender or exchange offer to acquire more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the CorporationCompany’s equity securities.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cyclo Therapeutics, Inc.)
Standstill. Each Stockholder agrees that, until such time that such Stockholder beneficially owns Voting Stock representing less than 5% of the outstanding shares of Common Stock (on an as-converted basis), none of it or its Affiliates will, directly or indirectly, do any of the following unless requested or approved in advance in writing by the Company:
(a) The Investors [Reserved.]
(b) acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire any shares of Preferred Stock or Common Stock (including any derivative securities or contracts or instruments in any way related thereto) of the Company such that after such acquisition the Stockholder and its Affiliates would beneficially own 45% or more of the outstanding shares of Common Stock (on an as-converted basis); provided that the foregoing restriction in this Section 3.2(b) shall not (and they shall cause their respective affiliates apply to not), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
acquisition (i) pursuant to Section 4.2 (APreemptive Rights) commence of this Agreement or any Stockholder’s exercise of its Right of First Refusal in connection with a takeTransfer that is permitted by Section 3.1 or (ii) that is the result of operation of Section 10 (Anti-over bid for any securities Dilution Adjustments) of the Corporation; Certificate of Designations;
(Bc) effectmake, seekor in any way participate in, directly or indirectly, any “solicitation” of “proxies” (within the meaning of Rule 14a-1 under the Exchange Act) to vote any Voting Stock of the Company or its subsidiaries, or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders or seek the removal of any director from the Board of the Company (other than pursuant to Article II of this Agreement);
(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or propose without conditions) any take-over bid, amalgamation, merger, arrangementconsolidation, business combination, re-organizationtender or exchange offer, restructuring restructuring, recapitalization or liquidation with respect to other extraordinary transaction of or involving the Corporation Company or any of its subsidiaries or disposition of more than their securities or assets (except (i) any nonpublic proposal to the Board that would not require the Company, such Stockholder or any other Person to make any public announcement or other disclosure with respect thereto or (ii) any public disclosure in any filings by the Stockholder or its Affiliates with the SEC to the extent required by applicable law or stock exchange rules);
(e) form, join or in any way participate in a majority “group” (as defined in Section 13(d)(3) of the assets of the Corporation, or (CExchange Act) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate any Voting Stock of the InvestorCompany or its subsidiaries, where the Common Shares including with any other Stockholder or any of Convertible Securities held its Affiliates; provided that taking any action as required by such person do this Agreement shall not comprise constitute a material portion violation of the assets of such personthis Section 3.2(e);
(iif) take any action that would reasonably be expected to cause or require of the Company to make a public announcement regarding any actions prohibited by this Section 3.2;
(g) contest the validity or enforceability of this Section 3.2; or
(h) enter into any arrangements, understandings or proposeagreements (whether written or oral) with, offer or agree advise, assist or encourage, any other persons to enter into do any of the foregoing; provided, however, that nothing contained in this Section 3.2 shall limit, restrict or engage in prohibit (i) any negotiations confidential, non-public discussions with or communications or proposals to management or the Board by the Stockholder, its Affiliates or representatives related to any of the foregoing, (ii) a Stockholder’s ability to vote, Transfer, convert, exercise its rights under Section 4.2 (Preemptive Rights) or Section 3.3 (Right of First Refusal) or otherwise exercise rights with respect to any:
its Common Stock or Preferred Stock in accordance with the terms and conditions of this Agreement and the Certificate of Designations or (Aiii) acquisitionthe ability of any Stockholder’s Director to vote or otherwise exercise his or her duties or otherwise act in his or her capacity as a member of the Board; provided, amalgamationfurther, plan that, for the avoidance of arrangementdoubt, any shares of Preferred Stock and Common Stock held by a Stockholder or its Permitted Transferee shall be subject to the terms and restrictions set forth in this Agreement and the Certificate of Designations, including the limitations on voting set forth in Section 12 of the Certificate of Designations. Notwithstanding the foregoing, the restrictions set forth in this Section 3.2 shall not apply if any of the following occurs (provided, that, in the event any matter described in clauses (a) or (b) of this paragraph has occurred and resulted in the restrictions imposed under this Section 3.2 ceasing to apply to a Stockholder, then, in the event the transaction related to such matter has not occurred within twelve (12) months of the date on which the Stockholder was released from such restrictions, then so long as such transaction is not being actively pursued at such time, the restrictions set forth in this Section 3.2 shall thereafter resume and continue to apply in accordance with their terms (provided that such restrictions shall not resume and continue to apply if such Stockholder has publicly taken any tangible steps with respect to any action or matter that would be prohibited by this Section 3.2 and such Stockholder is at that time continuing to pursue such action or matter, in which case such restrictions shall resume and continue to apply following such time as such Stockholder has ceased to pursue such action or matter)): (a) in the event the Company enters into a definitive agreement for a merger, tender offer or take-over bid, exchange offer consolidation or other business combination transaction relating as a result of which the stockholders of the Company would own (including, but not limited to, beneficial ownership) Voting Stock of the resulting corporation having 50% or less of the votes that may be cast generally in an election of directors if all outstanding Voting Stock were present and voted at a meeting held for such purpose; or (b) in the event that a tender offer or exchange offer for at least 50.1% of the Capital Stock of the Company is commenced by a third person (and not involving any breach, by a Stockholder, of this Section 3.2), which tender offer or exchange offer, if consummated, would result in a Change of Control, and either (1) the directors (excluding any Directors designated by the Stockholders) recommend that the stockholders of the Company tender their shares in response to such offer or do not recommend against the tender offer or exchange offer within ten (10) business days after the commencement thereof or such longer period as shall then be permitted under U.S. federal securities laws or (2) the directors (excluding any Directors designated by the Stockholders) later publicly recommend that the stockholders of the Company tender their shares in response to such offer. Notwithstanding the foregoing, solely with respect to the Corporation Liberty Broadband Stockholder, references in this Section 3.2 to Affiliates shall mean Affiliates acting at the direction of or in concert with the Liberty Broadband Stockholder or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of Permitted Transferees and any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”)foregoing Persons’ respective Subsidiaries.
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Standstill. (a) The Investors Until the earlier of (x) the expiry of the First Five Years and (y) the first date on which the Percentage of Outstanding Shares held by the Investor is less than 10%, the Investor and its Affiliates shall not not, directly or indirectly through any officer, director, employee, representative or agent of the Investor or its Affiliates, without the prior written authorization of the Corporation:
(and they shall cause their respective affiliates i) acquire or agree to not)acquire or make any proposal or offer to acquire, directly or indirectly in any manner, directly, indirectly or jointly assist or in concert with encourage any other personPerson to acquire or agree to acquire or offer to acquire, during any securities of the Restricted PeriodCorporation (including, without limitation, shares, bonds, debentures, options or other derivative products the prior consent value of which is tied to the value of securities of the BoardCorporation), except any such consent being determined by a simple majority vote of purchases or acquisitions from the Board (excluding the vote of any Investor Nominee):Corporation;
(iii) (A) commence solicit, initiate, facilitate, assist or encourage or participate in (including by way of furnishing information or entering into any form of agreement, arrangement or understanding) the initiation of any offer or proposal which could result in a take-over bid Change of Control of the Corporation or (B) engage in discussions or negotiations or cooperate in any way with any other Person, for purposes of initiating any joint offer or joint proposal which could result in a Change of Control of the Corporation;
(iii) enter into any contract, understanding or arrangement in respect of an offer or proposal which could result in a Change of Control of the Corporation;
(iv) initiate, solicit, join or in any way participate with any Person (other than the Corporation) in the “solicitation” (as such term is defined in the Securities Act) of any proxies in order to vote, advise, assist, encourage or influence any Person with respect to the voting of any securities of the Corporation, nor call meetings of securityholders of the Corporation;
(v) directly or indirectly seek to control or influence the management of the Corporation or the Board other than pursuant to private communications with the Board or management of the Corporation or its Subsidiaries or through the Investor’s nominees on the Board in their capacity as directors of the Corporation; or
(Bvi) effectmake any public or private disclosure of any consideration, seekintention, transaction, offer or propose proposal inconsistent with any take-over bidof the foregoing.
(b) Notwithstanding the foregoing:
(i) If:
(A) the Corporation, amalgamation, merger, arrangement, business combination, re-organization, restructuring Symbility Solutions or liquidation with respect to the Corporation Symbility US or any of its subsidiaries or disposition of more than a majority of the assets Affiliate of the Corporation, Symbility Solutions or Symbility US that is a successor to a material portion of any of their respective assets or businesses:
(C1) purchase any Common Shares initiates or Convertible Securities, except in connection with the acquisition of conducts a person that holds Common Shares or Convertible Securities by the Investor or an affiliate strategic process (a “Sale Process”) involving a proposed sale of the InvestorCorporation, where the Common Shares of Convertible Securities held by Symbility Solutions, Symbility US or such person do not comprise Affiliate or a material portion of the assets of any of the foregoing or any other transaction that, if entered into, would be reasonably likely to result in a Change of Control of the Corporation, Symbility Solutions, Symbility US or such person;Affiliate (any of the foregoing being hereinafter referred to as an “Extraordinary Transaction”); or
(ii2) enter provides access to due diligence to, or enters into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation a confidentiality agreement or any other agreement with, any Person in respect of its affiliates a Sale Process or any part of their respective assets or businessesan Extraordinary Transaction; or
(B) any restructuringof the directors (other than directors who are nominees of the Investor), recapitalizationofficers, liquidation agents or similar transaction involving Principal Securityholders of the Corporation, Symbility Solutions, Symbility US or any Affiliate of the Corporation, Symbility Solutions or Symbility US that is a successor to a material portion of any of their respective assets or businesses advises the board of directors or any committee (including any special committee) of the board of directors of the Corporation, Symbility Solutions or Symbility US or such Affiliate that he, she or it has had discussions with any Person in circumstances in which such discussions have led to, or would reasonably be expected to lead to, a bona fide offer or proposal from any Person in respect of an Extraordinary Transaction (it being acknowledged and agreed that the Corporation, Symbility Solutions, Symbility US and any such Affiliate (i) shall use commercially reasonable efforts to cause such directors, officers, agents and Principal Securityholders to promptly advise the applicable board of directors or board committee of any such discussions and (ii) shall implement and maintain company policies requiring their respective directors, officers and agents to promptly advise the applicable board of directors or committee of any such discussions); then (X) the Corporation will promptly, and in any event, within two (2) Business Days after the occurrence of any of the events described in subparagraphs (A) or (B) above (any such event being hereinafter referred to as a “Notifiable Event”) notify the Investor of such Notifiable Event and (Y) the Investor and its Affiliates will be permitted to participate in any Sale Process and/or to otherwise make proposals to the board of directors (or committee thereof) or shareholders of the Corporation, Symbility Solutions or Symbility US, as applicable, in respect of an Extraordinary Transaction on the same basis as the most favoured participant in the Sale Process, or any other Person making an offer or proposal in respect of an Extraordinary Transaction, as applicable, and will be provided access to all due diligence that is made available to any other Person with respect to such Sale Process or Extraordinary Transaction, as applicable. It is acknowledged and agreed that a response by any officer, director, agent or Principal Securityholder of the Corporation, Symbility Solutions or Symbility US to an unsolicited proposal received from a third Person shall not constitute a Notifiable Event for the purposes hereof or give rise to any rights on the part of the Investor unless and until the board of directors of the Corporation, Symbility Solutions or Symbility US has been advised, in accordance with Section 4.1(b)(B), that such response has resulted in discussions that have led to, or would reasonably be expected to lead to, a bona fide offer or proposal from such third Person in respect of an Extraordinary Transaction;
(ii) the Investor and its affiliates Affiliates will be released from any restriction and obligation set forth in this Section 4.1 if:
(A) the Corporation, Symbility Solutions or Symbility US (or any part successor to a material portion of any of their respective assets or businesses) enters into a definitive agreement (other than a confidentiality or standstill agreement) with a third Person in respect of an Extraordinary Transaction; or
(B) any Person that is not related to the Investor and that is not part of an offering group with the Investor, announces a take-over bid or tender offer for the Common Shares or mails an offer circular with respect to such a take- over bid or tender offer;
(iii) engage in short sales of any subject to applicable Securities Laws, the Investor and its Affiliates shall be permitted to solicit votes from the shareholders of the Equity Securities held by Corporation in favour of the Investorelection of its nominees designated pursuant to Section 2.1;
(iv) solicit proxies from shareholders or formsubject to applicable Securities Laws, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors Investor shall be permitted at any time and from time to take time during the First Five Years to purchase additional Common Shares up to a Hostile Action, from and after: (i) the commencement or public announcement number of a take-over bid, Common Shares which if completed would result in the acquisition Percentage of Outstanding Shares being equal to but not greater than 40%; provided that the Investor shall either (A) not vote more than 5033.29% of the then total number of Common Shares outstanding voting securities as of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement record date of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.applicable vote or
Appears in 1 contract
Sources: Shareholder Agreements
Standstill. Seller will not, nor will it cause or permit any Lame Group Member to, acting on its or their own behalf or in concert, directly or indirectly, for a period of five (5) years following the date of this Agreement (the “Standstill Period”):
(a) The Investors shall not (and they shall cause their respective affiliates make any statement or proposal to not), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote any of the Board Company’s officers or any of the Company’s shareholders regarding, or make any public announcement, proposal or offer (excluding including any action to become a “participant” in a “solicitation,” or assist any “participant” in a “solicitation”, as such terms are defined in Rule 14a-1 of Regulation 14A and Instruction 3 of Item 4 of Schedule 14A, respectively, under the vote Securities Exchange Act of any Investor Nominee):
1934) with respect to, or otherwise solicit, seek or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamationbusiness combination, merger, arrangementtender offer, business combination, re-organization, restructuring exchange offer or liquidation with respect to similar transaction involving the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationsubsidiaries, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation Company or any of its affiliates or any part of their respective assets or businesses;
subsidiaries, (iii) engage in short sales of any acquisition of the Equity Securities held by Company’s equity securities or assets, or rights or options to acquire interests in the Investor;
Company’s equity securities or assets, (iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or seek representation on the board of directors of any of the Corporation’s affiliates (other than pursuant Company or otherwise seek to control or influence the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the management, board of directors of any or policies of the Corporation’s affiliatesCompany, (v) any request or proposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this Subsection 3.1.1(a);
(vib) adviseinstigate, encourage or assist or encourage any person third party (including forming a “group,” pursuant to 15 U.S.C. § 78m(d)(3), or otherwise acting in concert, pursuant to 12 CFR § 225.41(b)(2), with any such personthird party) proposing to do, or enter into any discussions or agreements with any third party with respect to, any of the foregoingactions set forth in clause (a) above;
(c) take any action which would reasonably be expected to require the Company or any of its affiliates to make a public announcement regarding any of the actions set forth in Subsection 3.1.1(a) above;
(d) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any equity securities or assets of the Company, or rights or options to acquire any equity securities or assets of the Company;
(e) except in connection with the enforcement of this Agreement, initiate or participate, by encouragement or otherwise, in any litigation against the Company or any of its subsidiaries or their respective officers and directors, or in any derivative litigation on behalf of the Company, except for testimony which may be required by law; or
(viif) make advise, assist, encourage or finance (or arrange, assist or facilitate financing to or for) any public announcement or take other person in connection with any action in furtherance of the foregoingmatters restricted by, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease or otherwise seek to apply, and circumvent the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation limitations of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationthis Agreement.
Appears in 1 contract
Standstill. Executive agrees that, for a period of two years from the date of this Agreement, neither Executive nor any of Executive's affiliates will (a) The Investors shall not (and they shall or will cause their respective affiliates to notor assist others to), without the prior written consent of the Company or its Board of Directors: (i) acquire, offer to 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 any issued by the Company or any parent or subsidiary thereof, or of any successor, or any assets of the Company or any parent or subsidiary or division thereof or of any such successor, which may be outstanding on the date hereof or subsequently issued during such two year period (except pursuant to the exercise of stock options granted to Executive on or before the Termination Date); (ii) make or in any mannerway participate in, directlydirectly or indirectly, indirectly any "solicitation" of "proxies" (as such terms are used in the rules of the Securities Exchange Commission) to vote, or jointly seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company (or any parent or subsidiary thereof); (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company (or any parent or subsidiary thereof) or its or their securities or assets; (iv) form, join or in any way participate in a "group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) otherwise act, alone or in concert with any other personothers, during to seek control or influence the Restricted Periodmanagement, without the prior consent Board of Directors or policies of the Board, such consent being determined by a simple majority vote of the Board Company (excluding the vote of or any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporationparent or subsidiary thereof); (Bvi) effectdisclose any intention, seek, offer plan or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation arrangement inconsistent with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, foregoing; or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vivii) advise, assist or encourage any person (including forming a “group” other persons in connection with any such person) proposing any of the foregoing; or
. Executive also agrees during such period not to request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph (viiincluding this sentence) make any public announcement or take any action in furtherance which might require the Company to make a public announcement regarding the possibility of an extraordinary transaction involving the Company or its securities or assets. Notwithstanding the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors Executive shall be permitted entitled to take a Hostile Action, from receive and after: (i) the commencement or public announcement of a take-over bid, which if completed would result own all securities distributed in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation respect of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing issued in exchange for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities owned by him which were not acquired in violation of the Corporation or more than a majority of the assets of the Corporationthis Agreement.
Appears in 1 contract
Sources: Separation Agreement (Amfm Inc)
Standstill. Except for securities acquired pursuant to or as contemplated by this Agreement, neither Executive nor any affiliates or representative of Executive (a) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly acting on behalf of or in concert with Executive, any of Executive’s affiliates or any of Executive’s other personrepresentatives) will, at any time during the Restricted Periodeighteen (18)-month period commencing on the Termination Date (or, without the prior consent of the Boardat any time during such period, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
assist, advise, act in concert or participate with or encourage others to), directly or indirectly: (i) (A) commence a take-over bid for acquire or agree, offer, seek or propose to acquire, by purchase, tender offer, exchange offer, agreement or business combination or in any other manner, any ownership, including, but not limited to, beneficial ownership, as defined in Rule 13d-3 under the Securities Exchange Act of 1934, of any of the assets, businesses or securities of the CorporationCompany or any direct or indirect subsidiary thereof, or any rights or options to acquire such ownership (including from any third party); (Bii) effect, seek, offer to enter into or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organizationrecapitalization, restructuring or liquidation other extraordinary transaction with respect to the Corporation Company or any of its subsidiaries direct or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businessesindirect subsidiary thereof; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales initiate any stockholder proposal or the convening of a stockholders’ meeting of or involving Company or any of the Equity Securities held by the Investor;
direct or indirect subsidiary thereof; (iv) solicit proxies (as such terms are defined in Rule 14a-1 under the Exchange Act), whether or not such solicitation is exempt pursuant to Rule 14a-2 under the Exchange Act, with respect to any matter from, or otherwise seek to influence, advise or direct the vote of, holders of any shares of capital stock of Company or any securities convertible into, exchangeable for or exercisable for (in each case, whether currently or upon the occurrence of any contingency) such capital stock, or make any communication exempted from shareholders or form, join or participate in a group to so solicit, other than any the definition of solicitation of proxies voting in favour of by Rule 14a-1(l)(2)(iv) under the nominees of management of the Corporation for election to the Board;
Exchange Act; (v) present otherwise seek or propose to influence, advise, change or control the management, board of directors, governing instruments, affairs or policies of Company or any direct or indirect subsidiary thereof; (vi) enter into any discussions, negotiations, agreements, arrangements or understandings with any other person with respect to any matter described in the foregoing clauses (i) through (vi); (vii) request to present at any meeting of the securityholders of the Corporation that Company (or any of its affiliates representatives) amend or through waive any provision of this subsection (d); or (viii) other than as required by law, make any public disclosure, or take any action by written consent any proposal for consideration for action by securityholdersthat could reasonably be expected to require Executive or Company to make a public disclosure, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request with respect to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly matters set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
subsection (vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”d).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Separation Agreement (Allscripts Healthcare Solutions, Inc.)
Standstill. Unless approved in advance in writing by the Company, GHC agrees that it will not, directly or indirectly:
(a) The Investors shall not make any statement or proposal to the Board of Directors of the Company, any of the Company’s officers or other representatives or any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (and they shall cause their respective affiliates including any “solicitation” of “proxies”, as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to, or otherwise solicit, seek or offer to not)effect (including, in any manner, directlyfor the avoidance of doubt, indirectly by means of communication with the press or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
media) (i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamationbusiness combination, merger, arrangementtender offer, business combination, re-organization, restructuring exchange offer or liquidation with respect to similar transaction involving the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationsubsidiaries, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation Company or any of its affiliates subsidiaries, (iii) any acquisition of substantially all of the Company’s assets, or rights or options to acquire substantially all of the Company’s assets, (iv) any part proposal to seek representation on the Board of their respective assets Directors of the Company or businessesotherwise seek to control or influence the management, Board of Directors or policies of the Company, or (v) any request or proposal to waive, terminate or amend the provisions of this Agreement;
(iiib) engage in short sales of instigate, encourage or assist any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person third party (including forming a “group” with any such personthird party) proposing to do, or enter into any discussions or agreements with any third party with respect to, any of the foregoingactions set forth in clause (a) above;
(c) take any action that would reasonably be expected to require the Company or any of its affiliates to make a public announcement regarding any of the actions set forth in clause (a) above; or
(viid) make Acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any public announcement or take any action in furtherance equity securities of the foregoingCompany, or rights or options to acquire interests in any of the Company’s equity securities, except that (each, a “Hostile Action”).
(bi) The provisions of Section 5.3 shall cease to apply, and the Investors GHC shall be permitted to take a Hostile Actionacquire equity securities of the Company provided that GHC and its affiliates do not in the aggregate beneficially own twenty percent (20%) or more of the Company’s Common Stock, as determined pursuant to Rule l 3d-3 promulgated under the Exchange Act, and provided that any required regulatory consent, including from the New York State Department of Financial Services, is obtained with respect thereto, and after: (ii) for any equity securities of the Company held by GHC that exceed ten percent (10%) of such beneficial ownership of the Company’s Common Stock (the “Excess Securities”), GHC and its affiliates will, at any annual or special meeting of the Company, and at every adjournment or postponement thereof, and on every action or approval by written consent or consents of the Company’s stockholders, vote or cause the holder of record to vote any such Excess Securities in such manner as the Company, in its sole discretion, shall deem proper. Notwithstanding the foregoing provisions of this Section 11, (x) the restrictions set forth in this Section 11 will terminate immediately and be of no further force or effect with respect to GHC (i) in the commencement or public announcement event of the “commencement” (as that term is defined in Rule 14d-2 under the Exchange Act) of a take-over bid, which if completed would result in the acquisition of bona fide tender offer by a third party or group to acquire fifty percent (50%) or more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; Company, or (ii) if the approval Company or entering any of its affiliates enters into by the Corporation of, a definitive agreement with a third party or the public announcement of the approval or entering into by the Corporation of, group for a transaction or definitive agreement providing for a transaction, which, if completed, would result in involving the acquisition by any person such third party or group of persons of more than fifty percent (50% %) of the then outstanding voting securities of the Corporation Company or more than a majority of all or substantially all of the consolidated assets of the CorporationCompany and its subsidiaries, or the Company publicly announces that it plans to enter into any such transaction, and (y) nothing in this Agreement shall prevent a party or its Representatives from communicating with the Chairperson of the Board of Directors of the Company to make a proposal for or to negotiate with the Company in respect of a tender or exchange offer, merger or other business combination so long as such communication is made confidentially and does not require public disclosure.
Appears in 1 contract
Sources: Mutual Nondisclosure Agreement (Griffin Highline Capital LLC)
Standstill. (a) The Investors shall not Prior to the one-year anniversary of the Closing Date (and they shall cause their respective affiliates to notthe “Standstill Period”), in any mannerAstellas and its Affiliates will not, directlydirectly or indirectly, indirectly except as expressly approved or jointly invited by Vir Bio or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):otherwise expressly permitted pursuant to this Section 4.3:
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate, directly or indirectly (including through any take-over bidother Person), amalgamationin, (A) any acquisition of any securities (or beneficial ownership thereof) or material assets of Vir Bio, (B) any tender or exchange offer, merger, arrangementor other business combination involving Vir Bio, business combination(C) any recapitalization, re-organizationrestructuring, restructuring liquidation, dissolution or liquidation other extraordinary transaction with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the CorporationVir Bio, or (CD) purchase any Common Shares or Convertible Securities, except “solicitation” of “proxies” (as such terms are used in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate proxy rules of the Investor, where the Common Shares SEC) or consents to vote any voting securities of Convertible Securities held by such person do not comprise a material portion of the assets of such personVir Bio;
(ii) enter into form, join or propose, offer or agree to enter into or engage in any negotiations way participate in a “group” (as defined under the Exchange Act) with respect to any:any securities of Vir Bio;
(Aiii) acquisitionotherwise act, amalgamationalone or in concert with others, plan to seek to control or influence the management, Board or policies of arrangementVir Bio (other than such policies as may be within the scope of the Collaboration Agreement);
(iv) take any action that would reasonably be expected to require Vir Bio to make a public announcement regarding any of the types of matters set forth in clause (a)(i) above; or
(v) enter into any discussions or arrangements with any Person with respect to any of the foregoing.
(b) Astellas also agrees during the Standstill Period not to request Vir Bio (or its representatives), directly or indirectly, amend or waive any provision of this Section 4.3 other than by means of a confidential communication to the Vir Bio Chairman of the Board or Chief Executive Officer.
(c) Astellas represents and warrants that, as of the Execution Date, neither Astellas nor any of its Affiliates owns, of record or beneficially, any voting securities of Vir Bio, or any securities convertible into or exercisable for any voting securities of Vir Bio.
(d) Notwithstanding the provisions set forth in Sections 4.3(a) and (b) (the “Standstill Provisions”), Astellas shall immediately, and without any other action by Vir Bio, be released from its obligations under the Standstill Provisions if: (a) Vir Bio executes, or publicly announces its intention to execute, a definitive agreement with a third party providing for an acquisition (by way of merger, tender offer or take-over bidotherwise), exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then Vir Bio’s outstanding voting securities Common Stock or all or substantially all of the Corporation by Vir Bio’s assets, (b) any person or group of persons; “group” (as defined under the Exchange Act) commences a tender offer or (ii) the approval makes an offer or entering into by the Corporation of, or the proposal which is made public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons seeking to acquire beneficial ownership of more than 50% of Vir Bio’s outstanding Common Stock (with any acquisition described in clauses (a) and (b) referred to as a “Change of Control Transaction”), (c) Vir Bio waives any standstill or similar provision in any other agreement between Vir Bio and a third party for the then outstanding voting explicit purpose of allowing the third party to pursue or engage in any Change of Control Transaction, or (d) Vir Bio publicly announces the commencement of a formal process to solicit proposals for a potential business combination transaction. None of (i) the ownership or purchase by an employee benefit plan of Astellas or Astellas’ Affiliates in any diversified index, mutual or pension fund managed by an independent advisor, which fund in-turn holds, directly or indirectly, securities of Vir Bio, (ii) the Corporation or more than a majority acquisition of the assets equity securities of an entity that owns securities of Vir Bio prior to such acquisition so long as such acquisition is not consummated for the purpose of circumventing this Section 4.3 or (iii) transfers or resales of the CorporationShares by Astellas to any other person in compliance with Sections 4.2 and 5, will be deemed to be a breach of Astellas’ standstill obligations under this Section 4.3.
Appears in 1 contract
Standstill. (a) The Investors shall Without the prior written consent of independent members of the Board or a duly formed special committee of the Board consisting exclusively of independent directors, Investor will not (and they shall cause their respective affiliates to will ensure that its Affiliates will not)) from the date hereof until May 21, in any manner, directly, indirectly or jointly or in concert with any other person, during 2014 (the “Restricted Period, without ”): except as otherwise contemplated by this Agreement or the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
Transaction Documents (i) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (Aincluding, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) commence a take-over bid for of any securities of the CorporationCompany, or any direct or indirect rights or options to acquire any such securities or any securities convertible into such securities (collectively, “Securities”); (Bii) effectmake, seekor 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 voting of any voting securities of the Company or any of its subsidiaries; (iii) 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 the Securities of the Company, (iv) enter, agree to enter, propose, seek or offer to enter into or propose facilitate any take-over bid, amalgamation, merger, arrangement, business combination, re-organizationrecapitalization, restructuring or liquidation with respect to other extraordinary transaction involving the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationsubsidiaries, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present disclose any intention, plan or request to present at any meeting of arrangement prohibited by, or inconsistent with, the securityholders of the Corporation foregoing or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. Investor further agrees that during the Restricted Period none of it or any of its Affiliates (or any person acting on behalf of or in concert with it or any of its Affiliates) will, without the written consent of the Company, (x) request the Company or any of its representatives directly or indirectly to amend or waive any provision of this Section 4.4 (including forming a “group” with any such personthis sentence), or (y) proposing any of the foregoing; or
(vii) make any public announcement or take any action that would require the Company to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in furtherance this paragraph with Investor or its Affiliates. Nothing contained in Agreement shall prevent Investor or any of its Affiliates from making a confidential proposal to the Board, without public disclosure by such Persons or that would require public disclosure, for a tender offer, exchange offer, merger, other business combination, other extraordinary transaction involving the Company or for an acquisition of all or a material portion of the securities or the consolidated assets of the Company. Notwithstanding the foregoing, (eachif at any time during the Restricted Period, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement Company enters into (or public announcement of publicly announces) an agreement providing for a take-over bidCombination, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) a tender or exchange offer that if consummated would constitute a Combination is made (or has been publicly announced), then the approval or entering into by the Corporation ofrestrictions set forth in clauses (i) through (vi), or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by this Section 4.4(a) shall automatically terminate and cease to be of any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationeffect.
Appears in 1 contract
Standstill. Subject to the last paragraph of this Section 3 and except to the extent specifically provided in Section 4 of this Agreement, Laddcap covenants and agrees that until the expiration of the Standstill Period, unless specifically requested in writing in advance by a majority of the Board, excluding ▇▇▇▇ for as long as he is a director, neither Laddcap nor any of its representatives will (and Laddcap and they will not assist, encourage or participate with others to), directly or indirectly:
(a) The Investors shall not acquire, announce an intention to acquire, offer, seek or propose to acquire, or agree to acquire, directly or indirectly, by purchase, gift, tender or exchange offer, or otherwise, beneficial or record ownership of any common shares or any other voting securities of Delcath, including any rights, warrants, options or other securities convertible into or exchangeable for common shares or any other voting securities of Delcath from Delcath or third parties;
(and they shall cause their respective affiliates to not)b) form, join or in any manner, directly, indirectly way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the common shares or jointly any other voting securities of Delcath or otherwise act in concert with any other Person in respect of any such securities;
(c) arrange, or in any way participate in, any financing for the purchase by any individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, person, during the Restricted Periodtrust, without the prior consent association, organization or other entity, including any successor, by merger or otherwise, of any of the Boardforegoing (collectively, such consent being determined by “Persons” and each, a simple majority vote “Person”) of the Board (excluding the vote common shares or any other voting securities or assets or businesses of Delcath or any Investor Nominee):of its affiliates;
(id) (A) commence a take-over bid for join in or in any securities of the Corporation; (B) effectway participate in any pooling agreement, seek, offer voting trust or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring other arrangement or liquidation agreement with respect to the Corporation or voting of any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personDelcath’s voting securities;
(iie) enter into or proposemake, offer or agree seek to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join propose or participate in making a group proposal to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation Delcath or any third party (by public announcement, submission to Delcath or a third party or otherwise) in respect of any extraordinary corporate transaction involving Delcath, its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation voting securities or any of its affiliates, including a merger, reorganization, recapitalization, extraordinary dividend, dissolution, restructuring, liquidation, sale or transfer of assets other than in the ordinary course of Delcath’s business, or the acquisition or purchase by Laddcap or any other Person of all or any portion of the assets or capital stock of Delcath, whether by merger, consolidation, tender or exchange offer or otherwise;
(i) solicit proxies or consents for the voting of any voting or other securities of Delcath or otherwise become a “participant,” directly or indirectly, in any “solicitation” of “proxies” or consents to vote, or become a “participant” in any “election contest” involving Delcath or Delcath’s securities (all terms used herein and defined in Regulation 14A under the Exchange Act having the meanings assigned to them therein), (ii) call or seek to call, directly or indirectly, any special meeting of stockholders of Delcath for any reason whatsoever, (iii) seek, request, or take any action to obtain or retain, directly or indirectly, any list of holders of any voting or other securities of Delcath or to obtain or retain, directly or indirectly, the books and records of Delcath or its affiliates, (iv) seek to advise or influence any Person with respect to the voting of any securities of Delcath, (v) initiate, propose or request otherwise “solicit” Delcath stockholders for the approval of shareholder proposals, whether made pursuant to propose Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, (vi) otherwise communicate with Delcath’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, (vii) participate in, or take any nominee for election action pursuant to, any “shareholder access” proposal which may be adopted by the Securities and Exchange Commission whether in accordance with previously proposed Rule 14a-11 or otherwise, (vii) otherwise engage in any course of conduct with the purpose of causing stockholders of Delcath to vote contrary to the Board or the board of directors of any recommendation of the CorporationBoard on any matter presented to Delcath’s affiliates stockholders for their vote or challenging the policies of Delcath or (other than pursuant viii) otherwise act, alone or in concert with others, to seek to control or influence the nomination rights management, the Board, policies or affairs of Delcath;
(g) except as specifically and expressly set forth in this Agreement) , seek any change in the composition or seek the removal of any member classification of the Board or management of Delcath, including any plans or proposals to change the board number or term of directors directors, vote against any candidate for the Board nominated for election or re-election by the Nominating Committee (or any successor committee) of the then-existing Board, or fill any vacancies on the Board;
(h) seek to change the determination or direction of the basic business decisions of Delcath, the present capitalization or dividend policy of Delcath, Delcath’s Amended and Restated Certificate of Incorporation (the “Charter”) or Bylaws or Delcath’s business or corporate structure or otherwise take any action inconsistent with the ownership of common shares “solely for the purpose of investment”;
(i) make or disclose any statement regarding any intent, purpose, plan or proposal with respect to the Board, Delcath, its management, policies or affairs or any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement, including, but not limited to, a request (by submission to Delcath, public announcement or otherwise) in any form that the prohibitions set forth in this Agreement be waived or that Delcath take any action which would permit Laddcap to take any of the actions prohibited by this Agreement, (ii) otherwise seek in any fashion a waiver, amendment or modification of this Agreement or make any statement (to Delcath or a third party or by public announcement) relating to Laddcap’s willingness to pursue any such prohibited action conditioned upon waiver of this Agreement or (iii) take any action that could require Delcath to make any public disclosure relating to any such intent, purpose, plan, proposal or condition; and
(j) (i) initiate, solicit, advise, assist, facilitate, finance, or encourage or otherwise participate in the taking of any of the Corporation’s affiliates;
foregoing actions by any other Person, (viii) advisemake any investments in any third party that engages, assist or encourage any person (including forming a “group” with any such person) proposing offers or proposes to engage, in any of the foregoing; or
, or (viiiii) make otherwise enter into any public announcement discussions, negotiations, arrangements or take understandings with, any action in furtherance third party with respect to any of the foregoing, (each, a “Hostile Action”)foregoing actions.
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Settlement Agreement (Ladd Robert)
Standstill. Purchaser agrees that, for a period of two years from the Closing Date or termination of this Agreement pursuant to Section 13.1, neither Purchaser nor any of its affiliates (aas such term is defined in Rule 12b-2 of the Exchange Act) The Investors shall not will (and neither Purchaser nor they shall cause their respective affiliates to notwill assist or encourage others to), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without the prior written consent of Seller, any successor to or person in control of Seller, or its Board of Directors or in connection with any sale or reorganization procedures undertaken under the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
Bankruptcy Code: (i) acquire or agree, publicly offer, publicly seek or propose to acquire, or cause to be acquired, directly or indirectly, by purchase or otherwise, ownership (Aincluding, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) commence a take-over bid for of any voting securities or direct or indirect rights or options to acquire any voting securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation Seller or any of its subsidiaries Subsidiaries, or disposition of more than a majority any reorganized successor to Seller, any of the assets or businesses of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation Seller or any of its affiliates Subsidiaries or divisions thereof or any part bank debt, claims or other obligations of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation Seller or any rights or options to acquire (other than those currently owned) such ownership (including from a third party); (ii) seek or propose to influence or control the management or policies of its affiliates Seller or to obtain representation on Seller’s Board of Directors, or solicit, or participate in the solicitation of, any part proxies or consents with respect to any securities of their respective assets Seller, or businesses;
(iii) engage in short sales of make any public announcement with respect to any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present foregoing or request permission to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing do any of the foregoing; or
(viiiii) make any public announcement with respect to, or take publicly submit a proposal for, or offer of (with or without conditions) any action in furtherance extraordinary transaction involving Seller or its securities or assets; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, (eachor otherwise form, join or in any way participate in a “Hostile Action”).
group” (bas defined in Section 13(d)(3) The provisions of Section 5.3 shall cease the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) publicly seek or request permission or participate in any effort to apply, and do any of the Investors shall be permitted foregoing or make or seek permission to take a Hostile Action, from and after: (i) the commencement or make any public announcement of a take-over bid, which if completed would result in with respect to the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of personsforegoing; or (iivi) the approval publicly request Seller or entering into by the Corporation ofany of its representatives, directly or the public announcement indirectly, to amend or waive any provision of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationthis Section 12.3.
Appears in 1 contract
Standstill. (a) The Investors shall Each Investor agrees that, from and after the date of this Agreement to the sixth (6th) anniversary of the Closing Date other than (i) with respect to the nomination, election and removal of an Investor Designee or Investor Director or (ii) as otherwise expressly provided in this Agreement, it will not, directly or indirectly:
(i) acquire, agree to acquire, offer or propose to acquire (x) beneficial ownership of any additional Capital Stock or Derivative Securities or (y) any material assets of the Company and its Subsidiaries;
(ii) make, or in any way participate in, any solicitation of proxies or consents (whether or not relating to the election or removal of directors) with respect to any Capital Stock, become a participant in any election contest with respect to the Company or seek to advise or influence any person with respect to the voting of any Capital Stock or demand a copy of the stock ledger, list of holders of Capital Stock, or any other books and records of the Company;
(and they shall cause their respective affiliates iii) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act, as amended) with respect to not)any Capital Stock;
(iv) otherwise act, alone or in concert with others, to seek to control or influence, in any manner, directlythe management, indirectly the Company’s Board or jointly or in concert with any other person, during the Restricted Period, without the prior consent policies of the Board, such consent being determined by a simple majority vote of the Board Company (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation other than with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the BoardDirector);
(v) present deposit any Capital Stock in any voting trust or request subject any Capital Stock to present at any meeting of the securityholders of the Corporation arrangement or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election agreement with respect to the Board or the board voting of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliatessuch Capital Stock;
(vi) call or seek to have called any meeting of the holder of Capital Stock or execute any written consent with respect to the Company or the Capital Stock;
(vii) have any negotiations or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage encourage, any person (including forming a “group” other persons in connection with any such personof the foregoing, or make any investment in any other person that engages, or offers or proposes to engage, in any of the foregoing for the purpose of financing or furthering any of the foregoing;
(viii) proposing make any publicly disclosed proposal regarding any of the foregoing; or
(viiix) make any public announcement other proposal or take statement, or disclose any action in furtherance of intention, plan or arrangement, whether written or oral, inconsistent with the foregoing, (eachor request that the Company amend, a “Hostile Action”waive or terminate any provision of this Section 2.7(a).
(b) Without limiting Section 2.1(a), each Investor agrees that, from and after the sixth (6th) anniversary of the Closing Date, it will not, directly or indirectly, acquire or agree to acquire beneficial ownership of any additional Capital Stock or Derivative Securities in an amount which, when taken together with all other shares of Capital Stock or Derivative Securities then beneficially owned by the Investors, would equal or exceed the aggregate percentage of the Total Voting Power held by the ▇▇▇▇▇▇ Stockholders on the Closing Date, except:
(i) as may be necessary to maintain the Investor’s Pro Rata Percentage as of the Closing Date; or
(ii) as part of the direct or indirect acquisition of shares of Capital Stock or Derivative Securities of the Company by the Investors (A) in connection with a Fundamental Transaction proposed by the Investors and approved by the Board or (B) in connection with a Fundamental Transaction proposed by a third-party provided that the Investor Director shall have first resigned from the Board prior to such acquisition and no other Investor Designee shall then be serving on the Board; provided, that nothing in this Section 2.7(b) shall be deemed to require any Investor to sell or otherwise divest any Capital Stock or Derivative Securities not acquired in violation of this Section 2.7(b) or to restrict any Transfers of Capital Stock or Derivative Securities to any Investor Affiliate Transferee.
(c) The provisions of Section 5.3 2.7(a) and 2.7(b) shall cease to apply, apply if:
(i) any representation or warranty of the Company or the ▇▇▇▇▇▇ Stockholders contained in any of the Transaction Documents was untrue in a material respect as of the date made or deemed made and the Investors have notified the Company and the ▇▇▇▇▇▇ Stockholders of such material breach in writing;
(ii) the Company or a ▇▇▇▇▇▇ Stockholder defaults in any material respect on its obligations under (A) Section 2.2, Section 2.4, Section 2.5 or Section 2.10 of this Agreement or (B) Sections 2, 3, 7 and 9 of the Registration Rights Agreement, thirty (30) days after written notice to the Company (or ▇▇▇▇▇▇ Stockholder) of such default, unless, if such default is capable of being cured by the Company and/or ▇▇▇▇▇▇ Stockholder, the Company and/or ▇▇▇▇▇▇ Stockholder cures such default within thirty (30) days after such notice (provided if such default cannot be cured within such thirty (30) day period, such period shall be permitted to take extended, but not in excess of 180 days after the date of such notice, so long as the Company and/or ▇▇▇▇▇▇ Stockholder is diligently pursuing a Hostile Actioncure);
(iii) on the first date when interests in real property, from and after: (i) at their approximate fair market values during the commencement or public announcement of a take-over bidperiod in question, which if completed would result in the acquisition of more have comprised less than 50% of the then outstanding voting securities Company’s total assets on a consolidated basis for a period of eighteen (18) months ending on such date; or
(iv) on the first date the Company is required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended.
(d) Nothing in this Section 2.7 shall be deemed to limit or affect in any manner the Investor Designee acting as a member of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the CorporationBoard.
Appears in 1 contract
Sources: Stockholders' Agreement (Thomas Properties Group Inc)
Standstill. Each Investor agrees that from the date hereof and until one year following the date hereof (a) The Investors shall not (and they shall cause their respective affiliates to notthe “Standstill Period”), in it will not, and will also ensure that no member of its Investor Group nor any manner, directly, indirectly or jointly Person acting on behalf of or in concert with such Investor nor any other personmember of its Investor Group, during the Restricted Periodwill directly or indirectly, without the prior written consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
Company: (i) (A) commence a take-over bid for acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities of the CorporationCompany or any of its Subsidiaries, or any warrant, option or other direct or indirect right to acquire any such securities that (taken together with all Shares and other voting securities held by such Investor Group) exceeds 19.9% of the then outstanding shares of Common Stock; (Bii) effectenter, seekagree to enter, propose, seek or offer to enter into or propose facilitate any take-over bid, amalgamation, merger, arrangement, business combination, re-organizationrecapitalization, restructuring or liquidation other extraordinary transaction involving the Company or any of its Subsidiaries; (iii) initiate, encourage, make, or in any way participate or engage in, any “solicitation” of “proxies” as such terms are used in the proxy rules of the Commission to vote, or seek to advise or influence any Person with respect to the Corporation or voting of, any of its subsidiaries or disposition of more than a majority voting securities of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businessesCompany; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders file with the Commission a proxy statement or any supplement thereof or any other soliciting material in respect of the Company or its stockholders that would be required to be filed with the Commission pursuant to Rule 14a-12 or other provisions of the Exchange Act; (v) nominate or recommend for nomination a Person for election at any stockholder meeting at which directors of the Company’s board of directors are to be elected; (vi) submit any stockholder proposal for consideration at, or bring any other business before, any Company stockholder meeting; (vii) form, join or in any way participate in a group to so solicit, other than any solicitation “group” (within the meaning of proxies voting in favour Section 13(d)(3) of the nominees of management Exchange Act) with respect to any voting securities of the Corporation for election to Company; (ix) call, request the Board;
(v) present calling of, or request to present at any otherwise seek or assist in the calling of a special meeting of the securityholders stockholders of the Corporation Company; (x) otherwise act, alone or any of its affiliates in concert with others, to seek to control or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting influence the management or the policies of the securityholders of Company; (xi) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the Corporation foregoing; or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vixii) advise, assist or encourage or enter into any person (including forming a “group” discussions, negotiations, agreements or arrangements with any such person) proposing any of other Persons in connection with the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Standstill. For a period of the longer of (x) three (3) years from the date of this Agreement and (y) for so long thereafter as ▇▇▇▇▇ has the right to designate the ▇▇▇▇▇ Designee to the Board pursuant to Section 2, unless otherwise agreed in writing by the Company, neither ▇▇▇▇▇ (directly or indirectly) nor any representatives acting on its behalf, nor any of Mandarin, ▇▇▇▇▇ 48 or their Affiliates will: (a) The Investors shall not propose any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, or similar transactions involving the Company or any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (and they shall cause their respective affiliates b) acquire beneficial ownership of more than 19.99% of any securities (including in derivative form) of the Company except as permitted by this Agreement (any transaction or series of transactions specified in (a) or (b) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to notas a “Business Combination”); (c) propose or seek, in any manner, directly, indirectly or jointly whether alone or in concert with others, any other person, during “solicitation” (as such term is used in the Restricted Period, without the prior consent rules of the Board, such consent being determined by a simple majority SEC) of proxies or consents to vote any securities (including in derivative form) of the Board Company except in accordance with this Agreement; (excluding d) nominate any person as a director of the vote Company except for the ▇▇▇▇▇ Designee in accordance with the terms of this Agreement; (e) propose any Investor Nominee):
matter to be voted upon by the stockholders of the Company; (if) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the SEC) (Aor discuss with any third party the potential formation of a group) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to any securities (including in derivative form) of the Corporation Company or a Business Combination involving the Company; (g) request the Company (or any of its subsidiaries officers, directors or disposition representatives), directly or indirectly, to amend or waive any provision of more than a majority of the assets of the Corporation, this Section 5.2 (including this sentence); or (Ch) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of that could require the Company to make a public announcement regarding such potential Business Combination. Notwithstanding the foregoing, (eachI) nothing in this Agreement shall limit ▇▇▇▇▇’▇ (or its Permitted Transferees’) rights under the Registration Rights Agreement, (II) nothing contained in this Section 5.2 shall prohibit ▇▇▇▇▇ from making confidential, non-public proposals to the Company for a “Hostile Action”).
Business Combination; and (bIII) The the provisions of this Section 5.3 5.2 shall cease to apply, terminate and be of no further force or effect (A) upon the Investors shall be permitted to take Company’s announcement that it has entered into a Hostile Action, from and after: (i) the commencement or public announcement of definitive agreement for a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; Business Combination with a third party or (iiB) the approval if any Person(s) or entering into by the Corporation of, “group” publicly announces or the public announcement of the approval commences a tender or entering into by the Corporation of, a exchange offer or any other offer transaction or definitive agreement providing for a transaction, whichpursuant to which Shares could be sold that, if completedsuccessful, would result in the acquisition by any person such Person or group of persons of beneficially owning more than 5035% of the then outstanding voting assets or securities of the Corporation or more than a majority Company determined as of the assets of the Corporationits most recent quarterly financial statement.
Appears in 1 contract
Sources: Stockholders Agreement
Standstill. The Investor agrees that until the later of (ai) The Investors shall not twelve (12) months after the Investor Board Seat Fall-Away and they shall cause their respective affiliates to not), in any manner, directly, indirectly no Investor Director or jointly or in concert with any other person, during Advisor Director is serving on the Restricted PeriodBoard and (ii) the three-year anniversary of the Closing Date, without the prior consent written approval of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):will not, directly or indirectly, and will cause its Affiliates not to:
(ia) (A) commence acquire, offer or seek to acquire, agree to acquire or make a take-over bid for proposal to acquire, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation Company or any of its subsidiaries Affiliates, any securities convertible into or disposition exchangeable for any such securities, any options or other derivative securities or contracts or instruments in any way related to the price of more than a majority shares of Common Stock or any assets or property of the assets Company or any Subsidiary of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personCompany;
(iib) enter into make or propose, offer or agree to enter into or engage in any negotiations way encourage or participate in any “solicitation” of “proxies” (whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC, to vote, or seek to advise or influence any Person with respect to any:
(A) acquisitionvoting of, amalgamation, plan any voting securities of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation Company or any of its affiliates Subsidiaries, or any part of their respective assets call or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group seek to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition call a meeting of the securityholders of Company’s stockholders or initiate any stockholder proposal for action by the Corporation Company’s stockholders, or any of its affiliates, propose or request to propose any nominee for seek election to or to place a representative on the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of director from the Board or the board of directors of any of the Corporation’s affiliatesBoard;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(viic) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of a material portion of the assets, properties or securities of the Company or any Subsidiary of the Company, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(d) otherwise act, alone or in concert with others, to seek to control or influence, in any manner, the management, board of directors or policies of the Company or any of its Subsidiaries;
(e) make any proposal or statement of inquiry or disclose any intention, plan or arrangement inconsistent with any of the foregoing;
(f) advise, assist, encourage or direct any Person to do, or to advise, assist, encourage or direct any other Person to do, any of the foregoing;
(g) take any action that would, in furtherance effect, require the Company to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 5.07;
(h) enter into any discussions, negotiations, arrangements or understandings with any third party (including, without limitation, security holders of the Company) with respect to any of the foregoing, (eachincluding, without limitation, forming, joining or in any way participating in a “Hostile Action”).group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in connection with any of the foregoing;
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) request the commencement Company or public announcement any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 5.07, provided that this clause shall not prohibit the Investor Parties from making a take-over bidconfidential request to the Company seeking an amendment or waiver of the provisions of this Section 5.07, which if completed would result the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person; or
(j) contest the acquisition validity of more than 50% this Section 5.07 or make, initiate, take or participate in any demand, Action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 5.07; provided, however, that nothing in this Section 5.07 will limit (1) the Investor Parties’ ability to vote (subject to Section 5.11), Transfer (subject to Section 5.08), convert (subject to Section 6 (Right of the then outstanding voting securities Holders to Convert) of the Corporation by any person Certificate of Designations) or group of persons; otherwise exercise rights under its Common Stock or Series A Preferred Stock or (ii2) the approval ability of any Investor Director or entering into by the Corporation of, Advisor Director to act in his or the public announcement her capacity as a member of the approval Board including, but not limited to, his or entering into by the Corporation of, a transaction her ability to vote or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person otherwise exercise his or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationher fiduciary duties.
Appears in 1 contract
Standstill. (a) The Investors Each of the LGP Group, the Castik Group, the Partners Group Investor Parties and the NGB Investor Parties (each of the LGP Group, the Castik Group, the Partners Group Investor Parties and the NGB Investor Parties, a “Group”; provided that for the avoidance of doubt, none of the Onex Investor Parties, Baring Investor Parties or ▇▇▇▇▇▇▇▇▇ Parties shall be a member of any Group) agrees with the Company that, from the date hereof until the time set forth in paragraph (c), it shall not, and shall cause its controlled Affiliates (for the avoidance of doubt, controlled Affiliates shall not be deemed to include any Group’s co-investors over which it does not exercise control) and any investment funds or vehicles controlled, managed or advised by its respective Sponsor not to, directly or indirectly, without the prior written consent of the Company, (and they shall cause i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any Company Securities or assets of the Company or any of its Subsidiaries, (ii) make any public announcement with respect to, or offer, seek, propose, indicate an interest in (in each case, with or without conditions) or enter into, any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of a material portion of the assets, properties or securities of the Company or any of its Subsidiaries, or any other extraordinary transaction involving the Company or any of its Subsidiaries or any of their respective affiliates securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing, (iii) make, or in any way participate or engage in, any solicitation of proxies (whether or not relating to not)the election or removal of directors) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (iv) deposit any Company Securities in any voting trust or similar arrangement or subject any Company Securities to #93427126v13 any agreement, arrangement or understanding with respect to the voting of any Company Security, including the grant of any proxy with respect to the voting of any Company Security, (v) demand a copy of the stock ledger list of shareholders or any other books and records of the Company, (vi) otherwise act, alone or in concert with others, to seek to control or influence, in any manner, directlythe management, indirectly Board or jointly or in concert with any other person, during the Restricted Period, without the prior consent policies of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the CorporationSubsidiaries, or (Cvii) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or in any way participate in a group to so solicit, other than any solicitation “group” (within the meaning of proxies voting in favour Section 13(d)(3) of the nominees of management Exchange Act) with respect to any voting securities of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates Company (other than pursuant to this Agreement and the nomination rights expressly set forth transactions contemplated hereby), (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing; (ix) take any action that would, in this Agreement) effect, require the Company to make a public announcement regarding the possibility of a transaction or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
events described in this Section 4.01(a), (vix) advise, assist or encourage or enter into any person (including forming a “group” discussions, negotiations, agreements or arrangements with any such personother Persons in connection with the foregoing, (xi) proposing request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 4.01(a), (xii) contest the validity of this Section 4.01(a) or make, initiate, take or participate in any action or proceeding (legal or otherwise) or proposal to amend, waive or termination any provision of this Section 4.01(a), (xiii) enter into any agreement, arrangement or understanding with respect to any of the foregoing or (xiv) knowingly encourage or knowingly facilitate others to do any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Subject to Section 5.3 shall cease 4.02, notwithstanding anything to applythe contrary in this Agreement, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement prohibitions in this Section 4.01 shall not affect any Group’s ability to hold or public announcement of a take-over bidvote the Company Securities held by such Group or any Group’s rights under this Agreement, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval prohibitions in this Section 4.01 shall not affect the ability of any LGP Investor Designee to vote or entering into by otherwise exercise his or her fiduciary duties as a director on the Corporation ofBoard, (iii) and the prohibitions in this Section 4.01 shall immediately terminate without further force or effect and each Group shall be released from compliance therewith if the Company (A) institutes a voluntary proceeding, or becomes the public announcement subject of an involuntary proceeding which involuntary proceeding is not dismissed within 60 days, under any bankruptcy act, insolvency law or any law for the approval relief of debtors, (B) has a receiver appointed to manage its affairs, which appointment is not dismissed, vacated or entering into by stayed within 60 days, (C) executes a general assignment for the Corporation of, benefit of creditors or (D) determines in its discretion to terminate this Section 4.01.
(c) The prohibitions in Section 4.01(a) shall cease to apply to a transaction or definitive agreement providing for a transaction, which, if completed, would result in Group on the acquisition by any person or group of persons of more date such Group’s aggregate Percentage Interest is less than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation5%.
Appears in 1 contract
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not)Each of the parties agrees that, in any manner, directly, indirectly or jointly or in concert with any other person, during until the Restricted Periodexpiration of eighteen months from the date of this Agreement, without the prior written consent of the Board, such consent being determined by a simple majority vote Board of Directors or General Partners of the Board (excluding the vote of any Investor Nominee):
other party, it and its affiliates will not (i) (A) commence a take-over bid for in any manner acquire, agree to acquire or make any proposal or offer or otherwise seek to acquire, directly or indirectly any securities (or rights in respect thereof), assets or property of the Corporationother party or any of its subsidiaries, whether such agreements or proposals or offers are made with or to the other party (or any controlling person or successor thereof) or any of its subsidiaries; (Bii) effectenter into or agree, seekoffer, offer seek or propose to enter into or otherwise be involved in or part of, directly or indirectly, any take-over bid, amalgamation, merger, arrangement, acquisition transaction or other business combination, re-organization, restructuring or liquidation with respect to combination involving the Corporation other party or any of its subsidiaries or disposition any of more than a majority their respective assets; (iii) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the proxy rules of the assets Securities Exchange Act of 1934, as amended (the Corporation"Exchange Act")) to vote, or (C) purchase seek to advise or influence any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisitionthe voting of, amalgamation, plan any voting securities of arrangement, merger, tender offer or take-over bid, exchange offer or the other business combination transaction relating to the Corporation party or any of its affiliates subsidiaries; (iv) form, join or in any part way participate in a "group" (within the meaning of their respective assets or businesses; or
(BSection 13(d)(3) of the Exchange Act) with respect to any restructuring, recapitalization, liquidation or similar transaction involving voting securities of the Corporation other party or any of its affiliates subsidiaries; (v) otherwise act, alone or in concert with others, to seek or propose to control or influence the management, Board of Directors or policies of the other party; (vi) directly or indirectly enter into any part of their respective assets discussions, negotiations, arrangements or businesses;
(iii) engage in short sales of understandings with any other person with respect to any of the Equity Securities held by foregoing activities or propose any of such activities to any other person; or (vii) publicly disclose any intention, plan or arrangement inconsistent with the Investor;
foregoing; (ivviii) solicit proxies from shareholders directly or formindirectly advise, join encourage, provide assistance (including debt or participate equity financial assistance) to or hold discussions with or invest in a group to so solicit, any other than person in connection with any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or foregoing. Each party also agrees that, during such eighteen month period, neither it nor any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and afterwill: (i) request the commencement other party or public announcement its advisors, directly or indirectly, to (1) amend or waive any provision of a take-over bid, which if completed would result in the acquisition this paragraph (including this sentence) or (2) otherwise consent to any action inconsistent with any provision of more than 50% of the then outstanding voting securities of the Corporation by any person or group of personsthis paragraph (including this sentence); or (ii) take any initiative with respect to the approval other party or entering into any of its subsidiaries that could reasonably be expected to require the other party to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, (3) the possibility of a Transaction or any similar transaction or (4) the possibility of such party or any other person acquiring control of the other party, whether by means of a business combination or otherwise. Notwithstanding any other provision hereof, this Section 9 shall not apply to a party in the event of a bona fide publicly announced proposal, offer or agreement by a third party not acting in concert with such party (i) to acquire more than 51% of any class of stock (or rights in respect thereof) of the other party or (ii) to acquire the other party, or all or substantially all of its assets, by means of a merger, consolidation, asset purchase or other similar transaction. Additionally, the Principal or President of a party may contact the Principal or President of the other party for the purpose of expressing continuing or renewed interest in a Transaction, provided that, unless invited to do so by the Corporation of, or the public announcement President of the approval other party, no offer or entering into proposal shall be made that would require public disclosure or formal consideration by the Corporation of, a transaction such other party or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group its Board of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the CorporationDirectors.
Appears in 1 contract
Standstill. (a) The Investors Until the later to occur of (i) the first day following the date on which the Beneficial Ownership Requirement is no longer satisfied and (ii) the date that is 18 months from the Initial Nomination Date, each Investor covenants and agrees with the Company that without the prior written consent of the Independent Directors or pursuant to the Purchase Agreements (A) the Investor shall not not, and (and they B) the Investor shall cause their respective affiliates to not)its Affiliates not to, in any mannereach case directly or indirectly, directly, indirectly alone or acting jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):Person:
(i) acquire or agree to acquire or make any proposal or offer to acquire, directly or indirectly in any manner (AX) any Common Shares (or any securities convertible, exercisable or exchangeable into Common Shares) or other securities of the Company from any third party other than the Company to the extent it would result in the Investors collectively holding more than the Maximum Permitted Percentage of the Common Shares or (Y) any material portion of the assets of the Company from any third party other than the Company or one of its Affiliates;
(ii) commence a take-over bid for any securities of the Corporation; Company or its Subsidiaries;
(Biii) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring restructuring, liquidation, by or liquidation with respect to the Corporation Company or any of its subsidiaries Subsidiaries, or disposition of more than a majority 50% (by fair market value) of the consolidated assets of the CorporationCompany and its Subsidiaries, or taken as a whole (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person“Extraordinary Transaction”);
(iiiv) enter into request, requisition or propose, offer or agree to enter into or engage in any negotiations call a special meeting of shareholders of the Company;
(v) propose a shareholder proposal (under the applicable provisions of the Act) with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businessesCompany;
(iiivi) seek to obtain representation on the Board of Directors other than pursuant to Article 2;
(vii) engage in short sales of any securities of the Equity Securities held by the InvestorCompany or its Subsidiaries;
(ivviii) solicit proxies from shareholders the security holders of the Company, or form, join or participate act jointly or in a group concert to so solicit, other than in relation to a proposed Change of Control Transaction or, for 18 months from the Initial Nomination Date, any solicitation of proxies voting in favour of the nominees of management of the Corporation for election matters referred to the Boardin Section 4.1(b);
(vix) present enter into or request offer to present at enter into or otherwise agree to be bound by a lockup, voting, support or other similar agreement with respect to any Common Shares (or any other right or option to acquire Common Shares (pursuant to the terms of a convertible, exchangeable or exercisable security or otherwise)) beneficially owned by the Investor or any Affiliate thereof, or over which it exercises control or direction, in connection with any proposed Change of Control Transaction unless such Change of Control Transaction is an Approved Change of Control Transaction;
(x) advise, assist (including by providing direct or indirect financial assistance), contact, encourage, or act jointly or in concert with any other Person to engage in any of the activities from which the Investor is restricted under this Section 4.1(a); or
(xi) make any public disclosure with respect to the foregoing, including, any consideration, intention, plan or arrangement inconsistent with any of the foregoing.
(b) Until the date that is six months from the Initial Nomination Date, each of the Investors shall, in respect of any meeting of the securityholders shareholders of the Corporation Company held during that period:
(i) not vote any Common Shares held against any Company Nominee, including, if applicable, any such Company Nominee designated pursuant to Section 2.1(j);
(ii) not vote any Common Shares held in favour of any director nominee that is not the Investors’ Nominee, a Hawthorne Nominee or a Company Nominee;
(iii) not vote any Common Shares held in favour of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request resolution to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of remove any member of the Board of Directors other than as contemplated in Section 2.1 or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist if such proposal or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation resolution is recommended by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets Independent Directors; and
(iv) not vote against the recommendations of the Corporation.Board of Directors on all regular business matters at each annual meeting of shareholders, including: (A) the appointment or reappointment of the Company’s auditors,
Appears in 1 contract
Sources: Investor Rights Agreement
Standstill. (a) The Investors shall Effective as of the Closing Date, other than as contemplated by the Stock Purchase Agreement, each Investor agrees that, prior to August 8, 2005, it will not (and they shall cause their respective affiliates to not)will not permit any member of the Warburg Group or any other controlled Affiliate to, in any manner, directlywhether publicly or otherwise, indirectly directly or jointly or in concert with any other person, during the Restricted Periodindirectly, without the prior written consent of the BoardCompany, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for acquire, agree to acquire or make any public proposal to acquire, directly or indirectly, beneficial ownership of any voting securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the CorporationCompany or any Subsidiary, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree publicly propose to enter into into, directly or engage in indirectly, any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer merger or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction or change of control involving the Corporation Company or any of its affiliates or any part of their respective assets or businesses;
Subsidiary, (iii) engage make, or in short sales any way participate, directly or indirectly, in any "solicitation" of any "proxies" (as such terms are used in the proxy rules of the Equity Securities held by Commission) to vote, or seek to advise or influence any Person with respect to the Investor;
voting of, any securities of the Company or any Subsidiary, (iv) solicit proxies from shareholders call, or seek to call, a meeting of the Company's stockholders or initiate any stockholder proposal for action by stockholders of the Company, (v) bring any action or otherwise act to contest the validity of this Section 6.04 or seek a release of the restrictions contained herein, (vi) form, join or in any way participate in a group "group" (within the meaning of Sections 13(d)(3) of the Exchange Act) with respect to so solicitany securities of the Company or any Subsidiary, (vii) other than any solicitation seat on the Board of proxies voting in favour of the nominees of management of the Corporation for election Directors expressly granted to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholdersWarburg Group in Section 5.09, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to seek representation on the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek Directors, the removal of any member directors from the Board of Directors of the Company or a change in the size or composition of the Board of Directors of the Company (including, without limitation, voting for any directors not nominated by the Board of Directors), (viii) enter into any discussions, negotiations, arrangements, understandings or the board of directors agreements (whether written or oral) with any other Person regarding any possible purchase or sale of any securities or assets of the Corporation’s affiliates;
Company or any Subsidiary, (viix) disclose any intention, plan or arrangement inconsistent with the foregoing, (x) take, or solicit, propose to or agree with any other Person to take, any similar actions designed to influence the management or control of the Company or (xi) advise, assist or encourage any person (including forming a “group” other persons in connection with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Nothing in this Section 5.3 6.04 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) limit any action taken by a Warburg Group Director in his or her capacity as a member of the commencement Board of Directors, (ii) prohibit or public announcement restrict any Investor, any member of the Warburg Group or any other controlled Affiliate of any Investor from responding to any inquiries from any stockholders of the Company as to such Person's intention with respect to the voting of shares of Common Stock or any other voting securities of the Company beneficially owned by such Investor, any member of the Warburg Group or any other controlled Affiliate of any Investor so long as such response is consistent with the terms of this Agreement, (iii) prohibit or restrict a take-over bidpurchase, which if completed would result in sale, merger, consolidation or other business combination transaction involving any portfolio company of any Investor, any member of the Warburg Group or any controlled Affiliate of any Investor so long as the purpose of such transaction is not the acquisition of more than 50voting securities or assets of the Company or any Subsidiary, (iv) prohibit the ownership, purchase or other acquisition of beneficial ownership of (A) any of the Conversion Shares or the Warrant Shares, or (B) any other securities in an amount that, when taken together with the number of shares of Common Stock beneficially owned by the Investors, the Warburg Group and the Investors' controlled Affiliates would not exceed 19.5% of the then outstanding voting Common Stock, (v) prohibit or restrict any agreement, arrangement, understanding, negotiation, discussion, disclosure or other action exclusively involving Warburg, its controlled Affiliates (other than any portfolio companies), the Investors, any member of the Warburg Group, and any employee, officer or director thereof, (vi) prohibit any notice to limited partners of a Warburg Group member in respect of a proposed distribution of securities of the Corporation Company to such limited partners, (vii) prohibit or restrain any sale or other disposition by the Investors or any person Permitted Transferees of any securities owned by them, including any discussions or negotiations concerning such sale or disposition between Warburg, any of its affiliates, the Investors, any member of the Warburg Group, and any employee, officer or director thereof, on the one hand and any Person or group of persons; on the other hand or (iiviii) prohibit or restrain any discussions or negotiations between Warburg and the approval Company that was initiated or entering into invited by the Corporation ofCompany (until the Company requests termination thereof), or the public announcement effectuation of any transaction resulting from such discussions or negotiations (unless the approval Company had previously requested termination of such discussions or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationnegotiations).
Appears in 1 contract
Standstill. (a) The Investors From the date of this Agreement until the earlier of the (i) fourth anniversary of the Closing Date and (ii) date on which the SB Group and its Affiliates collectively own less than five percent of the fully diluted equity interests of Symbotic (the “Standstill Period”), without the prior written consent of the Board, the SB Group shall not (not, and they shall cause their respective affiliates to not)each of its controlled Affiliates not to, in any mannerdirectly or indirectly, directly, indirectly or jointly alone or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):Person:
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation except with respect to the Corporation or any of its subsidiaries or disposition of more than a majority exercise of the assets of Warrant, subject to the Corporationconditions set forth therein, acquire, offer to acquire, or (C) agree to acquire, directly or indirectly, by purchase or otherwise, any Common Shares voting securities, derivatives or Convertible Securities, except in connection with the acquisition direct or indirect rights to acquire any voting securities of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personSymbotic;
(ii) enter deposit any voting securities of Symbotic into a voting trust or subject any voting securities of Symbotic to any proxy, arrangement or agreement with respect to the voting of such securities or other agreement having a similar effect;
(iii) initiate or propose, offer or agree other than pursuant to enter into or engage in any negotiations with respect to any:
Section 6.3(e), (A) acquisition, amalgamation, plan of arrangement, any merger, consolidation, business combination, tender offer or take-over bidexchange offer, exchange offer or other business combination transaction relating to the Corporation or any purchase of its affiliates or any part of their respective Symbotic’s assets or businesses; or
, or similar transaction involving Symbotic or (B) any recapitalization, restructuring, recapitalization, liquidation or similar other extraordinary transaction involving the Corporation with respect to Symbotic;
(iv) directly or indirectly, encourage or support a tender, exchange or other offer or proposal by any other Person in respect of its affiliates or any part of their respective Symbotic’s assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliatesinitiate, propose or request in any way participate in, directly or indirectly, any stockholder proposal or make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in SEC rules) to propose vote, or seek to advise or influence any nominee for election Person with respect to the Board voting of, any voting securities of Symbotic or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the board Exchange Act) with respect to any voting securities of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliatesSymbotic;
(vi) adviseform, assist join or encourage in any person (including forming way participate in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with respect to any such personvoting securities of Symbotic or any of the foregoing activities;
(vii) proposing call or seek to call any special meeting of stockholders of Symbotic;
(viii) propose, or agree to, or enter into any discussions, negotiations or arrangements with, or provide any confidential information to, any third party with respect to any of the foregoing; or
(viiix) make assist, advise or encourage any public announcement Person with respect to, or take seek to do, any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Notwithstanding Section 5.3 shall cease to apply6.3(a), the SB Group and the Investors shall be permitted to take a Hostile Action, from and afterits Affiliates may: (i) acquire voting securities of Symbotic in connection with the commencement Follow-On Offering in accordance with the terms of Section 5.1; (ii) acquire voting securities of Symbotic in connection with the Stock Purchase Agreement in accordance with the terms therein; (iii) own (and may acquire shares or public announcement other ownership interests in) any mutual fund or similar entity that owns the securities of a take-over bidSymbotic; provided, which if completed would result that the SB Group and its Affiliates own, in the aggregate, less than 5% of such mutual fund or similar entity and do not exercise control over the management or policies of such entity; and (iv) purchase or acquire additional voting securities in Symbotic, in the open market or otherwise, solely to the extent any such purchase or acquisition would not cause the SB Group’s and its Affiliates’ collective percentage ownership of Symbotic’s fully diluted equity interests to exceed 15%. The provisions set forth in this Section 6.3 shall not prohibit passive investments by a pension or employee benefit plan or trust for the SB Group’s or its Affiliates’ employees so long as such investments are directed by independent trustees, administrators or employees to whom no confidential information of Symbotic has been disclosed.
(c) Notwithstanding anything to the contrary herein, the Standstill Period shall terminate automatically upon:
(i) a Change of Control of Symbotic;
(ii) any “person” or “group” within the meaning of Sections 13(d) and 14(d) of the Exchange Act (other than the SB Group or one or more than of its Affiliates or any group that includes the SB Group or one or more of its Affiliates) commencing a tender or exchange offer that, if consummated, would make such person or group (or any of its or their Affiliates) the Beneficial Owner of 50% or more of the then total voting power of all outstanding voting securities of Symbotic or any rights or options to acquire such ownership, including from a third party, and the Corporation Board recommends in favor of such offer or fails to recommend that Symbotic’s stockholders reject such offer within 10 Business Days after its commencement;
(iii) Symbotic (A) entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate a business combination or any transaction which shall result in the acquisition, directly or indirectly, by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement beneficial ownership of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than at least 50% of Symbotic or (B) announcing (including through a Representative) Symbotic’s or the then outstanding voting securities Board’s approval or recommendation of any such business combination.
(d) For the avoidance of doubt, the expiration or termination of the Corporation Standstill Period shall not terminate or more than a majority otherwise affect any of the assets other provisions of this Agreement.
(e) The SB Group agrees not to request or otherwise publicly disclose that Symbotic Group amend or waive any provision of this Section 6.3 in a manner that is intended to or would reasonably be expected to require public disclosure with respect to such proposal.
(f) Nothing in this Section 6.3 will be deemed to limit the SB Group’s ability to provide its views privately to the Board or management of Symbotic on any matter or limit the ability of any director that is appointed to the Board by or otherwise affiliated with the SB Group to satisfy such Person’s obligations to Symbotic and its shareholders in such Person’s capacity as a director of Symbotic (it being understood, nothing herein shall limit such Person’s obligations to comply with any policies of Symbotic applicable to directors or to comply with Section 6.2(g)), or to privately request a waiver of any provision of this Section 6.3, provided that such actions are not intended to and would not reasonably be expected to require public disclosure of such actions.
(g) The Parties acknowledge and agree that it would be a breach of this Section 6.3 if any Affiliate of the CorporationSB Group takes any action that, if taken by the SB Group, would be prohibited by the terms of this Section 6.3.
Appears in 1 contract
Sources: Framework Agreement (Symbotic Inc.)
Standstill. (a) The Investors shall not (For a period commencing on the Effective Date and they shall cause ending on July 27, 2010, neither the Investor nor WPP USA, whether directly or indirectly through one or more intermediaries, including any of their respective affiliates Affiliates or Representatives of any of the foregoing (but, as to not)Representatives, only if acting in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Perioda representative capacity) shall, without the prior written consent of the Board, such consent being determined by a simple majority vote Company or its Board of the Board (excluding the vote of any Investor Nominee):Directors:
(ia) (A) commence a take-over bid for acquire, offer to 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 the CorporationCompany or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling person; notwithstanding the foregoing, the Investor may acquire voting securities of the Company amounting to not more than five percent (B5%) effectof the Company’s outstanding voting securities (in addition to the Shares purchased under this Agreement and any Warrant Shares acquired pursuant to the Enterprise Agreement);
(b) make, seekor in any way participate, offer directly or propose indirectly, in any take-over bid“solicitation” of “proxies” to vote (as such terms are used in the rules of the SEC), amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation seek to advise or influence any person or entity with respect to the Corporation or voting of any of its subsidiaries or disposition of more than a majority voting securities of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personCompany;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(viic) 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 of its securities or assets;
(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act, in connection with any of the foregoing;
(e) otherwise act or seek to control or influence the management, Board of Directors or policies of the Company;
(f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any of the events described in furtherance clauses (a) through (e) above; or
(g) request the Company or any of its Affiliates or Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Notwithstanding the foregoing, (each1) nothing in this Section 5.2 shall prohibit the Investor or its Affiliates or Representatives from making, a “Hostile Action”).
(b) The provisions or require the Investor or any of Section 5.3 shall cease its Representatives to applyobtain the consent of the Company or its Board of Directors to make, one or more proposals to the Company or its Board of Directors or any committee thereof to acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, 100% of the voting securities of the Company, provided that such proposal would not be required to be made public by Investor, WPP USA, or any of their respective Affiliates or the Company by law, rule, regulation or the requirements of any exchange on which the Company’s stock is listed, and (2) the Investors restrictions contained in this Section 5.2 shall be permitted to take a Hostile Action, from and after: become inoperative upon the earlier of (i) the commencement or public announcement of Company entering into a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of personsdefinitive agreement with respect to a Combination (as defined below); or (ii) the approval expiration of ten (10) business days following the commencement of an unsolicited tender or entering into exchange offer involving the Company or its securities made by the Corporation ofany third party other than Investor, WPP USA, or any of their respective Affiliates. For purposes of this Section 5.2, when two or more persons act as a partnership, limited partnership, syndicate, or other group for the public announcement purpose of the approval acquiring, holding, or entering into by the Corporation ofdisposing of securities of a Company, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person such syndicate or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than shall be deemed a majority of the assets of the Corporation“person”.
Appears in 1 contract
Standstill. Until the Lock-Up Expiration Date, neither the Subscriber nor any of its Affiliates or any “group” (awithin the meaning of Section 13(d)(3) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote Exchange Act) of which the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation Subscriber or any of its subsidiaries Affiliates is a member, nor any executive officer, director or disposition other agent acting on behalf of more than a majority any of the assets foregoing (collectively, the “Standstill Parties”) shall (and the Subscriber shall cause the other Standstill Parties not to), except as expressly contemplated hereunder or approved or invited in writing by the Company:
(a) directly or indirectly, seek to have called any meeting of the Corporationstockholders of the Company, propose or nominate for election to the board of directors of the Company (the “Board”) any person whose nomination has not been approved by the Board or cause to be voted in favor of such person for election to the Board any shares of capital stock of the Company;
(b) propose to enter into, directly or indirectly, any merger or business combination involving the Company, or (C) purchase any Common Shares subsidiary or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate Affiliate of the InvestorCompany, where the Common Shares of Convertible Securities held by such person do not comprise a or any material portion of the assets of such personthe Company or any of the foregoing, or directly or indirectly, propose, encourage or support a tender, exchange or other offer or proposal by any third party (an “Offeror”) the consummation of which would result in a Change of Control of the Company or any subsidiary or Affiliate of the Company or result in the acquisition any material portion of the assets of the Company or any of the foregoing (an “Acquisition Proposal”);
(iic) enter into directly or proposeindirectly, offer solicit proxies or agree consents or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act) in opposition to enter into or engage in any negotiations the recommendation of a majority of the members of the Board with respect to any:
(A) acquisitionany matter, amalgamationor seek to advise or influence any third party, plan with respect to voting of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to any shares of capital stock of the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businessesCompany;
(iiid) engage in short sales deposit any shares of any capital stock of the Equity Securities held by Company in a voting trust or subject any shares of capital stock of the InvestorCompany to any arrangement or agreement with respect to the voting of such shares;
(ive) solicit proxies from shareholders act in concert with any third party to take any action in clauses (a) through (d) above, or form, join or in any way participate in a group to so solicit“partnership, limited partnership, syndicate, or other than any solicitation “group” (within the meaning of proxies voting in favour Section 13(d)(3) of the nominees Exchange Act) with any third party within the meaning of management Section 13(d)(3) of the Corporation for election Exchange Act with respect to the Boardequity securities of the Company;
(vf) present take any action that is reasonably likely to require the Company to make a public announcement regarding the possibility of a business combination or request to present at any meeting of merger involving the securityholders of the Corporation Company or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliatesAffiliates;
(vig) adviseenter into discussions, negotiations, arrangements or agreements with, or otherwise advise or knowingly assist or encourage encourage, any person third party, or provide any third party with information, in relation to the foregoing actions referred to in (including forming a “group” with any such persona) proposing any of the foregoingthrough (f) above; or
(viih) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation ofpublicly disclose, or communicate directly with the public announcement of the approval Board regarding, any intention, plan or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationarrangement inconsistent with this Section 6.
Appears in 1 contract
Standstill. (a) The Investors shall Effective as of the Closing Date, other than as contemplated by the Conversion Agreement, each Investor agrees that, prior to August 8, 2005, it will not (and they shall cause their respective affiliates to not)will not permit any member of the Warburg Group or any other controlled Affiliate to, in any manner, directlywhether publicly or otherwise, indirectly directly or jointly or in concert with any other person, during the Restricted Periodindirectly, without the prior written consent of the BoardCompany, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for acquire, agree to acquire or make any public proposal to acquire, directly or indirectly, beneficial ownership of any voting securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the CorporationCompany or any Subsidiary, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree publicly propose to enter into into, directly or engage in indirectly, any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer merger or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction or change of control involving the Corporation Company or any of its affiliates or any part of their respective assets or businesses;
Subsidiary, (iii) engage make, or in short sales any way participate, directly or indirectly, in any "solicitation" of any "proxies" (as such terms are used in the proxy rules of the Equity Securities held by Commission) to vote, or seek to advise or influence any Person with respect to the Investor;
voting of, any securities of the Company or any Subsidiary, (iv) solicit proxies from shareholders call, or seek to call, a meeting of the Company's stockholders or initiate any stockholder proposal for action by stockholders of the Company, (v) bring any action or otherwise act to contest the validity of this Section 6.04 or seek a release of the restrictions contained herein, (vi) form, join or in any way participate in a group "group" (within the meaning of Sections 13(d)(3) of the Exchange Act) with respect to so solicitany securities of the Company or any Subsidiary, (vii) other than any solicitation seat on the Board of proxies voting Directors expressly granted to the Warburg Group in favour Section 5.09 of the nominees of management of Original Purchase Agreement or the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholdersConversion Agreement, requisition a meeting of the securityholders of the Corporation or any of its affiliatesas may be in effect, propose or request to propose any nominee for election to seek representation on the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek Directors, the removal of any member directors from the Board of Directors of the Company or a change in the size or composition of the Board of Directors of the Company (including, without limitation, voting for any directors not nominated by the Board of Directors), (viii) enter into any discussions, negotiations, arrangements, understandings or the board of directors agreements (whether written or oral) with any other Person regarding any possible purchase or sale of any securities or assets of the Corporation’s affiliates;
Company or any Subsidiary, (viix) disclose any intention, plan or arrangement inconsistent with the foregoing, (x) take, or solicit, propose to or agree with any other Person to take, any similar actions designed to influence the management or control of the Company or (xi) advise, assist or encourage any person (including forming a “group” other persons in connection with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Nothing in this Section 5.3 6.04 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) limit any action taken by a Warburg Group Director in his or her capacity as a member of the commencement Board of Directors, (ii) prohibit or public announcement restrict any Investor, any member of the Warburg Group or any other controlled Affiliate of any Investor from responding to any inquiries from any stockholders of the Company as to such Person's intention with respect to the voting of shares of Common Stock or any other voting securities of the Company beneficially owned by such Investor, any member of the Warburg Group or any other controlled Affiliate of any Investor so long as such response is consistent with the terms of this Agreement, (iii) prohibit or restrict a take-over bidpurchase, which if completed would result in sale, merger, consolidation or other business combination transaction involving any portfolio company of any Investor, any member of the Warburg Group or any controlled Affiliate of any Investor so long as the purpose of such transaction is not the acquisition of more than 50voting securities or assets of the -16- Company or any Subsidiary, (iv) prohibit the ownership, purchase or other acquisition of beneficial ownership of (A) (I) any shares of Series B Convertible Participating Preferred Stock, par value $1.00 per share, of the Company acquired by the Investors in the Original Purchase Agreement, or any shares of Common Stock issued in conversion thereof whether pursuant to the terms of the Conversion Agreement or otherwise, or (II) the Series A Warrants or the Series B Warrants of the Company acquired by the Investors in the Original Purchase Agreement, or any shares of Common Stock acquired upon exercise thereof whether pursuant to the terms of the Conversion Agreement or otherwise, or (B) any other securities in an amount that, when taken together with the number of shares of Common Stock beneficially owned by the Investors, the Warburg Group and the Investors' controlled Affiliates would not exceed 19.5% of the then outstanding voting Common Stock, (v) prohibit or restrict any agreement, arrangement, understanding, negotiation, discussion, disclosure or other action exclusively involving Warburg, its controlled Affiliates (other than any portfolio companies), the Investors, any member of the Warburg Group, and any employee, officer or director thereof, (vi) prohibit any notice to limited partners of a Warburg Group member in respect of a proposed distribution of securities of the Corporation Company to such limited partners, (vii) prohibit or restrain any sale or other disposition by the Investors or any person Permitted Transferees of any securities owned by them, including any discussions or negotiations concerning such sale or disposition between Warburg, any of its affiliates, the Investors, any member of the Warburg Group, and any employee, officer or director thereof, on the one hand, and any Person or group of persons; on the other hand, or (iiviii) prohibit or restrain any discussions or negotiations between Warburg and the approval Company that was initiated or entering into invited by the Corporation ofCompany (until the Company requests termination thereof), or the public announcement effectuation of any transaction resulting from such discussions or negotiations (unless the approval Company had previously requested termination of such discussions or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationnegotiations).
Appears in 1 contract
Sources: Stock Purchase Agreement (Avaya Inc)
Standstill. (a) The Investors shall not (During the Cooperation Period, the D. E. Shaw Parties will not, and they shall will cause their respective affiliates controlled Affiliates and their collective Covered Persons acting on their behalf (collectively with the D. E. Shaw Parties, the “Restricted Persons”) to not), in any manner, directly, indirectly directly or jointly or in concert with any other person, during the Restricted Periodindirectly, without the prior consent consent, invitation, or authorization of the Company or the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):in each case, in writing:
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effectacquire, seek, or offer or propose agree to acquire, by purchase or otherwise, or direct any take-over bidThird Party in the acquisition of record or beneficial ownership of any shares of Common Stock or securities convertible into shares of Common Stock, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation engage in any swap or hedging transactions or other derivative agreements of any nature with respect to any shares of Common Stock or securities convertible into shares of Common Stock, in each case, if such acquisition, offer, agreement or transaction would result, if consummated, in the Corporation D. E. Shaw Parties (together with their Affiliates) having beneficial ownership of, or any of its subsidiaries aggregate economic or disposition of voting exposure to, more than a majority 7.5% of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by Stock outstanding at such person do not comprise a material portion of the assets of such persontime;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisitioncall or seek to call (publicly or otherwise), amalgamationalone or in concert with others, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders Company’s stockholders (or the setting of the Corporation a record date therefor), (B) seek, alone or any of its affiliatesin concert with others, propose election or request to propose any nominee for election to appointment to, or representation on, the Board or nominate or propose the board of directors of nomination of, or recommend the nomination of, any of the Corporation’s affiliates (other than pursuant candidate to the nomination rights Board, except as expressly set forth in this AgreementSection 1, (C) make or seek be the proponent of any stockholder proposal to the Company or the Board or any committee thereof, (D) seek, alone or in concert with others the removal of any member of the Board Board, or (E) conduct a referendum of stockholders of the board Company or engage in any “withhold” or similar campaign;
(iii) make any request for any stockholder list or similar materials or other books and records of the Company or any of its subsidiaries, whether pursuant to Section 220 of the Delaware General Corporation Law or any other statutory or regulatory provisions providing for stockholder access to books and records of the Company or its Affiliates;
(iv) engage in any “solicitation” (as such term is used in the proxy rules promulgated under the Exchange Act but without giving effect to any of the exclusions from such definition under SEC rules, including the exclusion relating to solicitations of ten or fewer stockholders) of proxies with respect to the election or removal of directors of the Company or any other matter or proposal relating to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Corporation’s affiliatesExchange Act) in any such solicitation of proxies;
(v) disclose to any Third Party, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, its voting or consent intentions or votes as to matters submitted to a stockholder vote during the Cooperation Period;
(vi) advisetake any action in support of or make any proposal, announcement or request, either publicly or in a manner that would reasonably be expected to result in or require public disclosure, with respect to, (A) any change in the number, term or identity of directors of the Company or the filling of any vacancies on the Board other than as provided under Section 1, (B) any change in the business, capitalization, capital allocation policy or dividend policy of the Company or sale, spinoff, splitoff or other similar separation of one or more business units or any other Extraordinary Transaction, (C) any other change to the Board or the Company’s management, business or corporate or governance structure, (D) any waiver, amendment or modification to the Organizational Documents, (E) causing the Common Stock 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) knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or encourage advising any other person with respect to (A) the giving or withholding of any proxy relating to, or other authority to vote, any Common Stock, or (B) conducting any type of referendum relating to the Company (including forming a for the avoidance of doubt with respect to the Company’s management or the Board) (other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter);
(viii) form, join, knowingly encourage or knowingly participate in or act in concert with any “group” as defined in Section 13(d)(3) of the Exchange Act, with respect to any shares of Common Stock or securities convertible into shares of Common Stock, other than solely with Affiliates of the D. E. Shaw Parties with respect to any shares of Common Stock or securities convertible into shares of Common Stock now or hereafter owned by them;
(ix) enter into a voting trust, arrangement or agreement, or subject any shares of Common Stock or securities convertible into shares of Common Stock to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement (B) solely with Affiliates of the D. E. Shaw Parties, or (C) granting proxies in solicitations approved by the Board;
(x) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying Common Stock held by a Restricted Person to any Third Party;
(xi) institute, solicit, knowingly assist or join as a party any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of its or their respective current or former directors or officers (including derivative actions); provided, however, that for the avoidance of doubt, the foregoing will not prevent any Restricted Person from (A) bringing litigation against the Company to enforce any provision of this Agreement instituted in accordance with and subject to Section 10, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company or its Affiliates against a Restricted Person, (C) bringing or participating in bona fide commercial or legal disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights, or (E) responding to or complying with validly issued legal process;
(xii) make any disclosure or announcement, either publicly or in a manner reasonably likely to result in or require public disclosure, regarding any intent, purpose, place or proposal with respect to the Board, the Company, its management, policies or affairs, strategy, operations, financial results, any of its securities or assets or this Agreement, except in a manner consistent with the Press Release and the other provisions of this Agreement;
(xiii) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with any such person) proposing Third Party to take any of action that the foregoingRestricted Persons are prohibited from taking pursuant to this Section 2(c); or
(viixiv) make any request or submit any proposal to amend or waive the terms of this Agreement (including this subclause), in each case publicly or which would reasonably be expected to result in a public announcement or take disclosure of such request or proposal. The Restricted Persons will instruct their respective Representatives acting on their behalf to comply with this Section 2(c) and any failure by such Representatives to comply with such instructions will be deemed a breach by the D. E. Shaw Parties of this Section 2(c). The restrictions in this Section 2 will terminate automatically upon any material breach of this Agreement by the Company (including a failure by the Company to comply with its obligations in Section 1 to appoint or nominate the New Director, as applicable, or appoint any Replacement New Director, if applicable, to the Board in accordance with Section 1, a failure to perform any of the actions contemplated in Section 1(e) or a failure by the Company to issue the Press Release in accordance with Section 3) upon five business days’ written notice by any of the D. E. Shaw Parties to the Company if such breach has not been cured within such notice period; provided, that the D. E. Shaw Parties (i) specify in such written notice, in reasonable detail, the material breach on which they are relying to terminate its obligations under this Section 2 and (ii) are not in material breach of this Agreement at the time such notice is given or during the notice period. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including the restrictions in this Section 2) will prohibit or restrict any of the Restricted Persons from (A) making any factual statement to comply with any subpoena, legal requirement or other legal process or to respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any Restricted Person) or making any regulatory filing required pursuant to the Exchange Act or any other applicable regulatory regime (provided, that any such legal requirement or regulatory filing does not arise from or relate to an action by a Restricted Person that would otherwise violate Section 2(a) or Section 2(c) and any such statement, whether or not in a regulatory filing, does not otherwise violate Section 2(a) or Section 2(c)), (B) communicating privately with the Board or any of the Company’s senior officers regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, result in or require the Company or the D. E. Shaw Parties to make public disclosure (of any kind) with respect thereto, (C) (unless and until the Company commits to renominate and support the New Director or a Replacement New Director, as applicable at the 2024 Annual Meeting, pursuant to the notice process provided for in Section 2(a)) taking actions in furtherance of identifying and nominating director candidates in connection with the foregoing2024 Annual Meeting, so long as such actions are not intended to, and would not reasonably be expected to, result in or require the Company or the D. E. Shaw Parties to make public disclosure (of any kind) with respect thereto, (each, a “Hostile Action”).
(bD) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement granting any liens or public announcement encumbrances on any claims or interests in favor of a takebank or broker-over biddealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which if completed would result lien or encumbrance is released upon the transfer of such claims or interests in accordance with the acquisition of more than 50% terms of the then outstanding voting custody or prime brokerage agreement(s), as applicable, or (E) negotiating, evaluating and/or trading, directly or indirectly, in any index fund, exchange traded fund, benchmark fund or broad basket of securities which may contain or otherwise reflect the performance of, but not primarily consist of, securities of the Corporation by Company. Furthermore, for the avoidance of doubt, nothing in this Agreement will be deemed to restrict in any person or group of persons; or (ii) way the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result New Director in the acquisition by any person exercise of his or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationher fiduciary duties.
Appears in 1 contract
Standstill. (a) The Investors shall not For a period of 18 months from the Separation Date, neither Damaj nor any of his “Affiliates” or “Associates” (each, as defined in the rules and they shall cause their respective affiliates to not)regulations under the Securities Act of 1933, as amended) will in any manner, directly, indirectly directly or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):indirectly:
(i) acquire, offer to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, any securities, or direct or indirect rights to acquire any securities, of the Company or any subsidiary of the Company or of any successor to or person in control of the Company, or any cash settled call options or other 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 property of the Company or any subsidiary of the Company or of any such successor or controlling person (Aprovided however that all of Damaj’s outstanding equity compensation securities are excluded from this provision including any future exercise of his Company stock options);
(ii) commence a take-over bid for make or in any way participate in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to voting of, any voting securities of the Corporation; Company or any of its subsidiaries, or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal for action by the Company’s stockholders, or seek election to or to place a representative on the board of directors of the Company or seek the removal of any director from the board of directors of the Company, provided, however, that Damaj shall be permitted (Bbut not required) effectto vote the Shares in favor of the Board’s recommendations in any proxy solicitation that may be conducted by the Company (for the avoidance of doubt, seekDamaj shall not be permitted to vote against the Board’s recommendations in any proxy solicitation that may be conducted by the Company);
(iii) make any public announcement with respect to, or solicit or submit a proposal for, or offer of (with or propose without conditions) any take-over bid, amalgamation, merger, arrangementconsolidation, business combination, re-organizationtender or exchange offer, restructuring recapitalization, reorganization, purchase or liquidation with respect to the Corporation or any license of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets and properties of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination similar extraordinary transaction relating to involving the Corporation Company or any of its affiliates securities or enter into any part of their respective assets discussions, negotiations, arrangements, understandings or businesses; or
agreements (Bwhether written or oral) with any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of other person regarding any of the Equity Securities held by the Investorforegoing;
(iv) solicit proxies from shareholders or form, join or in any way participate in a group to so solicit, other than any solicitation of proxies voting “group” (as defined in favour Section 13(d)(3) of the nominees Securities Exchange Act of management 1934, as amended) with respect to any securities of the Corporation for election to Company or otherwise in connection with any of the Boardforegoing;
(v) present otherwise act, alone or request in concert with others, to present at any meeting seek to control or influence the management, board of directors or policies of the securityholders Company;
(vi) publicly disclose any intention, plan or arrangement inconsistent with any of the Corporation foregoing;
(vii) advise, assist, encourage or direct any person to do, or to advise, assist, encourage or direct any other person to do, any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of foregoing;
(viii) publicly request the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board Company or the board of directors of the Company, directly or indirectly, to amend or waive any provision of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoingSection 5; or
(viiix) make any public announcement contest the validity of this Section 5 of this Agreement or take any action in furtherance seek a release of the foregoing, restrictions contained under this Section 5 (each, a “Hostile Action”whether by legal action or otherwise).
(b) The provisions of Notwithstanding the limitations set forth in Section 5.3 5(a), the Company agrees that Damaj shall cease to applynot be prohibited from initiating private discussions with, and submitting confidential private proposals to, the Investors Company management or members of the board of directors; provided, that, any such proposal shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% conditioned on approval of the then outstanding voting securities Company’s board of the Corporation directors, shall not require public disclosure and shall not in any event be disclosed publicly or to any third party by Damaj or any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationhis affiliates.
Appears in 1 contract
Standstill. You hereby agree that for a period of twelve (a12) The Investors shall not months from the date of this Agreement, neither you nor any of your Representatives under your control or acting on behalf of you (and they shall cause their respective affiliates including any person or entity, directly or indirectly, through or with one or more intermediaries, controlling you or controlled by or under common control with you who are acting on your behalf) will, without the prior written consent of Bellatrix: acquire, offer to not)acquire or agree to acquire, in any mannerdirectly or indirectly, directlyby purchase or otherwise, indirectly individually or “jointly or in concert concert” (as that expression is used in the Securities Act (Ontario)) with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) voting securities or securities convertible into or exchangeable for voting securities (Aincluding, but not limited to, any warrants to acquire common shares in the capital of Bellatrix) commence a take-over bid for or direct or indirect rights or options to acquire any voting securities, of Bellatrix, (ii) debt securities of the Company (including, but not limited to, the 8.5% second lien notes and the 9.5% third lien PIK toggle notes issued by Bellatrix) or direct or indirect rights or options to acquire any debt securities of the Company, or (iii) claims, secured or otherwise, against the Company; directly or indirectly make, or in any way participate in, any solicitation of proxies to vote, or seek to advise or influence any other person with respect to the voting, of any securities of the CorporationCompany; or otherwise act alone or in concert with others to seek to control or influence the management, directors or corporate policies of the Company or to obtain representation on any of the Company’s boards of directors; or engage in any discussions or negotiations, enter into any agreement or submit a proposal for, or offer of (Bwith or without conditions) effect, seek, offer or propose any take-over bid, amalgamation, merger, plan of arrangement, reorganization or other business combinationcombination or any recapitalization, re-organizationrestructuring, restructuring liquidation, dissolution or liquidation with respect to the Corporation other extraordinary transaction involving Bellatrix or any of its subsidiaries securities, debt or disposition of more than a majority of the assets of the Corporation, assets; or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into any discussions or propose, offer arrangements with any third party other than your Representatives or agree to enter into or engage in assist any negotiations other person with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) or make any public announcement of any intention to do or take any action in furtherance of the foregoing; or attempt to induce any party not to make or conclude any proposal or arrangement with respect to the Company by threatening or indicating that you or any Representative may take any of the foregoing actions. The provisions of the this Section 9 (the “Standstill”) shall be inoperative and of no force or effect if, from and after the date hereof: (eacha) any person or group shall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company to acquire more than 50% of the outstanding voting securities of the Company or assets of the Company representing more than 50% of the consolidated earning power of the Company, taken as a “Hostile Action”).
whole, (b) The provisions of Section 5.3 shall cease to applyany person commences a tender or exchange offer or takeover bid which, and the Investors shall be permitted to take a Hostile Actionif consummated, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the such person’s acquisition of beneficial ownership of more than 50% of the then outstanding voting securities of the Corporation by Company, and in connection therewith, the Company makes a securities filing with respect to such offer that does not recommend that the Company’s stockholders reject such offer; or (c) the Company’s Board of Directors shall have determined in good faith, after consultation with outside legal counsel, that the failure to waive, limit, amend or otherwise modify the Standstill, would be reasonably likely to be inconsistent with the fiduciary duties of the Company’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have solicited, initiated, encouraged or taken any action to facilitate or assist or participate with any such other person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement in connection with any of the approval or entering into transactions contemplated by the Corporation ofclauses (a), a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group (b) and (c) of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationthis sentence.
Appears in 1 contract
Sources: Confidentiality Agreement
Standstill. JMI and Holtzman agree, with respect to LQ, DynaBazaar and Register, Baringt▇▇, ▇▇▇▇rotonda, and Ramius agree, with respect to MM, that, from the date of this Agreement and continuing for a period of two years thereafter (a) The Investors shall not (and they shall cause their respective affiliates to notsuch period, the "Standstill Period"), neither such Party nor any of such Party's Affiliates or Associates will in any manner, directlydirectly or indirectly: (a) effect or seek (including, indirectly without limitation, entering into any discussions, negotiations, agreements or jointly understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in concert with any way assist or facilitate any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any take-over bidacquisition of any securities (or beneficial ownership thereof), amalgamationor rights or options to acquire any securities (or beneficial ownership thereof), or any assets or businesses, of such company or companies, as the case may be, or any of their respective subsidiaries, (ii) any tender offer or exchange offer, merger, arrangementacquisition or other business combination involving such company or companies, business combinationas the case may be, re-organization(iii) any recapitalization, restructuring restructuring, liquidation, dissolution or liquidation other extraordinary transaction with respect to the Corporation such company or any of its subsidiaries or disposition of more than a majority of companies, as the assets of the Corporationcase may be, or (Civ) purchase any Common Shares solicitation of proxies or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets consents to vote any voting securities of such person;
company or companies, as the case may be (ii) enter into including, for this purpose, any proposal or propose, offer or agree submission to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales stockholders of any of the Equity Securities held by the Investor;
shareholder vote or otherwise); (ivb) solicit proxies from shareholders or form, join or in any way participate in a group to so solicit, other than any solicitation of proxies voting in favour of "group" (as defined under the nominees of management of the Corporation for election Securities Exchange Act) with respect to the Board;
such company or companies, as the case may be; (vc) present otherwise act, alone or request in concert with others, to present at seek to control or influence the management, board of directors or policies of such company or companies, as the case may be, or initiate or take any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or obtain representation on the board of directors of such company or companies, as the case may be; (d) take any action which would, or would reasonably be expected to, force such company or companies, as the case may be, to make a public announcement regarding any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly types of matters set forth in this Agreement(a) above; or seek the removal of (e) enter into any member of the Board discussions or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” arrangements with any such person) proposing third party with respect to any of the foregoing; or
. Each Party further agrees during the Standstill Period not to request, directly or indirectly, any amendment or waiver of any provision of this Section 4.7 (viiincluding this sentence) make any public announcement by such company or take any action in furtherance of companies, as the foregoingcase may be, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person other Party or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person of their respective Associates, Affiliates, agents or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationrepresentatives.
Appears in 1 contract
Standstill. (a) The Investors Each of the LGP Group, the Castik Group, the Partners Group Investor Parties and the NGB Investor Parties (each of the LGP Group, the Castik Group, the Partners Group Investor Parties and the NGB Investor Parties, a “Group”; provided that for the avoidance of doubt, none of the Onex Investor Parties, Baring Investor Parties or ▇▇▇▇▇▇▇▇▇ Parties shall be a member of any Group) agrees with the Company that, from the date hereof until the time set forth in paragraph (c), it shall not, and shall cause its controlled Affiliates (for the avoidance of doubt, controlled Affiliates shall not be deemed to include any Group’s co-investors over which it does not exercise control) and any investment funds or vehicles controlled, managed or advised by its respective Sponsor not to, directly or indirectly, without the prior written consent of the Company, (and they shall cause i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any Company Securities or assets of the Company or any of its Subsidiaries, (ii) make any public announcement with respect to, or offer, seek, propose, indicate an interest in (in each case, with or without conditions) or enter into, any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of a material portion of the assets, properties or securities of the Company or any of its Subsidiaries, or any other extraordinary transaction involving the Company or any of its Subsidiaries or any of their respective affiliates securities, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing, (iii) make, or in any way participate or engage in, any solicitation of proxies (whether or not relating to not)the election or removal of directors) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (iv) deposit any Company Securities in any voting trust or similar arrangement or subject any Company Securities to any agreement, arrangement or understanding with respect to the voting of any Company Security, including the grant of any proxy with respect to the voting of any Company Security, (v) demand a copy of the stock ledger list of shareholders or any other books and records of the Company, (vi) otherwise act, alone or in concert with others, to seek to control or influence, in any manner, directlythe management, indirectly Board or jointly or in concert with any other person, during the Restricted Period, without the prior consent policies of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the CorporationSubsidiaries, or (Cvii) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or in any way participate in a group to so solicit, other than any solicitation “group” (within the meaning of proxies voting in favour Section 13(d)(3) of the nominees of management Exchange Act) with respect to any voting securities of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates Company (other than pursuant to this Agreement and the nomination rights expressly set forth transactions contemplated hereby), (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing; (ix) take any action that would, in this Agreement) effect, require the Company to make a public announcement regarding the possibility of a transaction or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
events described in this Section 4.01(a), (vix) advise, assist or encourage or enter into any person (including forming a “group” discussions, negotiations, agreements or arrangements with any such personother Persons in connection with the foregoing, (xi) proposing request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 4.01(a), (xii) contest the validity of this Section 4.01(a) or make, initiate, take or participate in any action or proceeding (legal or otherwise) or proposal to amend, waive or termination any provision of this Section 4.01(a), (xiii) enter into any agreement, arrangement or understanding with respect to any of the foregoing or (xiv) knowingly encourage or knowingly facilitate others to do any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except Except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate pursuant to the terms of this Agreement, the Investor shall not, without the written consent of the Company, acquire directly or indirectly, in a public or private transaction, including by purchase in the open market, any Common Stock if the Investor, where ’s Beneficial Ownership of the Common Shares of Convertible Securities held Stock would thereafter exceed [**] percent ([**]%). In addition, unless approved in advance in writing by such person do not comprise a material portion of the assets of such person;
(ii) enter into Company, the Investor agrees that it will not, directly or propose, offer or agree to enter into or engage in any negotiations with respect to anyindirectly:
(i) Make any statement or proposal to the Company (other than a non-public statement or proposal delivered directly to the Chief Executive Officer or Chairman of the Board of Directors) or to any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including an “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (A) acquisition, amalgamation, plan of arrangementany business combination, merger, tender offer or take-over bidoffer, exchange offer or other business combination similar transaction relating to in the Corporation or any of its affiliates or any part of their respective assets or businesses; or
Company, (B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or Company, (C) any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales acquisition of any of the Equity Securities held by Company’s equity securities or assets or rights or options to acquire equity securities or assets, (D) any proposal to seek representation on the InvestorBoard of Directors of the Company or otherwise seek to control or influence the management, Board of Directors or policies of the Company or (E) any proposal, arrangement or other statement that is inconsistent with this Section 6.2;
(ivii) solicit proxies from shareholders Instigate, encourage or form, join or participate in a group to so solicit, other than assist any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person Third Party (including forming a “group” with any such personthird party) proposing to do, or enter into any discussions or agreements with any Third Party with respect to, any of the foregoingactions set forth in clause (i) above; or
(viiiii) Take any action which would reasonably be expected to require the Company or any of is Affiliates to make any a public announcement or take regarding any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: actions set forth in clause (i) above. Notwithstanding the commencement or public announcement foregoing provisions, the restrictions set forth in this Section 6.2(a) shall terminate and be of a take-over bidno further force and effect (x) if [**], which provided that the provisions of this Section 6.2(a) shall be revived if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons[**]; (y) upon [**]; or (iiz) so long as the approval or entering into by the Corporation of, or the public announcement Investor’s Beneficial Ownership remains less than [**] percent ([**]%) of the approval Company’s Common Stock, provided that the provisions of this Section 6.2(a) shall be revived at any time when the Investor’s Beneficial Ownership equals [**] percent ([**]%) or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the CorporationCompany’s Common Stock.
Appears in 1 contract
Standstill. (a) The Investors shall not Each Purchaser (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other person, except for Thrive Capital) agrees that during the Restricted Standstill Period, without the prior consent of the Board, such consent being determined by a simple majority vote written approval of the Board (excluding the vote of any Investor Nominee):Directors, such Purchaser will not, directly or indirectly, and will cause its Affiliates not to:
(i) (A) commence a take-over bid for any acquire, or offer or propose to acquire, or agree or seek to acquire, directly or indirectly, by purchase or otherwise, greater than 10% of the voting equity securities or direct or indirect rights or options to acquire greater than 10% of the voting equity securities of the Corporation; (B) effectCompany, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority substantially all of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personCompany;
(ii) enter into into, or proposeagree, offer or agree offer, propose or seek to enter into into, or engage otherwise be involved in or part of, directly or indirectly, any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer acquisition transaction or other business combination transaction relating to all or part of the Corporation Company or any acquisition transaction for all or substantially all of the assets of the Company or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage make or in short sales of any way participate in directly or indirectly, any “solicitation” or “proxy” (as such terms are used in the rules of the Equity Securities held by SEC) to vote, or seek to advise or influence any Person with respect to the Investorvoting of, any voting securities of the Company;
(iv) solicit proxies from shareholders or form, join or in any way participate in a group to so solicit, other than any solicitation “group” (within the meaning of proxies voting in favour Section 13(d)(3) of the nominees of management Exchange Act) with respect to any voting securities of the Corporation for election to the BoardCompany;
(v) present seek or request propose, alone or in concert with others, to present at any meeting of influence or control the securityholders of the Corporation Company’s management or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliatespolicies;
(vi) advisedirectly or indirectly enter into any discussions, assist negotiations, arrangements or encourage any person (including forming a “group” understandings with any other Person (other than a representative of such personPurchaser) proposing with respect to any of the foregoingforegoing activities or propose any such activities to any other Person;
(vii) advise, assist, encourage, act as a financing source for any other Person in connection with any of the foregoing activities; or
(viii) publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing restrictions.
(b) Each Purchaser (except for Thrive Capital) also agrees that, during the Standstill Period, it will not: (i) publicly request the Company or its advisors, directly or indirectly, to (1) amend or waive any provision of this Section 4.05 or (2) otherwise consent to any action inconsistent with any provision of this Section 4.05; or (ii) take any initiative with respect to the Company or any of its Affiliates which could require the Company to make a public announcement regarding (w) such initiative, (x) any of the activities referred to in Section 4.05(a), (y) the possibility of the Transactions or any similar transactions or (z) the possibility of such Purchaser or any other Person acquiring control of the Company, whether by means of a business combination or otherwise.
(c) The provisions of this Section 4.05 (the “Standstill”) shall be inoperative and of no force or effect with respect to any Purchaser if (i) any other Person or “group” (as defined in Section 13(d)(3) of the Exchange Act) shall have entered into a definitive agreement with the Company for a transaction that, after consummation thereof, the stockholders of the Company cease to own 50% or more of the total voting power (without giving effect to any overlapping shareholdings), or 50% or more of the consolidated total assets, of the Company or any successor entity or parent entity or resulting entity, (ii) a tender or exchange offer is made by any other Person or group to acquire 50% or more of the outstanding voting securities of the Company and the Board of Directors fails to recommend to the Company’s stockholders rejection of such tender or exchange offer within 10 Business Days of commencement thereof or withdraws such recommendation of rejection or recommends acceptance of such tender or exchange offer, (iii) the Company issues to any Person or group, or any Person or group acquires or comes to own, in each case, securities representing 50% or more of the total voting power of the Company, (iv) any Person or group commences a proxy solicitation in which the Person or “group” would, if successful or if settled, elect or acquire the ability to elect 50% or more of the Board of Directors, (v) the Company publicly announces that it has commenced a formal process to explore strategic alternatives, (vi) the Board of Directors (or any duly constituted committee thereof composed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure to waive, limit, amend or otherwise modify the Standstill, would be reasonably likely to be inconsistent with the fiduciary duties of the Company’s directors under applicable law, or (vii) make the Company enters into a voluntary or involuntary bankruptcy or insolvency process (any public announcement or take any action in furtherance of the foregoing, (eachsuch event, a “Hostile ActionFall-Away Event”).
(bd) The provisions of Section 5.3 shall cease Notwithstanding anything to apply, and the Investors shall be permitted to take a Hostile Actioncontrary in this Agreement, from and after: (i) after the commencement or public announcement occurrence of a takeFall-over bidAway Event or any expiration of this Section 4.05, which if completed would result in the acquisition no other provisions of more than 50% this Agreement will be interpreted to prevent or restrict any Purchaser from proposing, pursuing or executing a business combination transaction, or from taking any of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation ofactions described in this paragraph, or from taking any actions in furtherance thereof, with respect to the Company. Nothing in this paragraph shall prohibit any Purchaser from (x) communicating with the Company for a non-public announcement of the approval or entering into by the Corporation of, proposal regarding a transaction or definitive agreement providing for an amendment or waiver of this paragraph in such a transactionmanner as would not reasonably be expected to require public disclosure thereof under applicable law, which, if completed, would result in the acquisition by or (y) disposing of any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation any company covered by this Agreement which it currently holds or more than a majority of the assets of the Corporationmay hereafter acquire.
Appears in 1 contract
Standstill. Prior to the Standstill Expiration Date (a) The Investors as hereinafter defined), except to the extent AREH or its affiliates is invited to do otherwise by Presidio, AREH shall not, and shall not (and they shall cause their respective permit any of its affiliates to not)to, in any manner, directly, indirectly directly or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
indirectly: (i) (A) commence a take-over bid for any securities of the Corporation; (B) effectacquire, seekannounce an intention to acquire, offer or propose any take-over bidto acquire, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect solicit an offer to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer sell or agree to enter into acquire, by purchase , by gift, by joining a partnership, a limited partnership, a syndicate or engage any group or otherwise (other than any partnership, limited partnership, syndicate or group consisting solely of AREH and its affiliates and, in any negotiations with respect such event, only to any:
the extent permitted pursuant to section 2(b) below), (A) acquisition, amalgamation, plan of arrangement, merger, tender offer any Units in any Partnership or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuringassets, recapitalizationbusinesses or properties of any Partnership; (ii) participate in the formation or encourage the formation of, liquidation or similar transaction involving join or in any way participate with, any partnership, limited partnership, syndicate, group or other person or entity that beneficially owns or seeks to acquire beneficial ownership of Units in any Partnership for the Corporation purpose of beneficially owning or acquiring beneficial ownership of any such Units (other than any group consisting solely of AREH and its affiliates or any part of their respective assets or businesses;
affiliates); (iii) engage solicit, or participate in short sales of the solicitation of, proxies or become a participant in any of election contest (the Equity Securities held by terms used in this section 2.3 having the Investor;
respective meanings given them to Regulation 14A under the Exchange Act) with respect to any Partnership; (iv) initiate, propose or otherwise solicit proxies from shareholders limited partners for the approval of one or form, join more proposals with respect to any Partnership or participate in a group induce any other person to so solicit, other than initiate any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
such proposal; (v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors general partner of any Partnership or seek to have called any meeting of the Corporation’s affiliates;
limited partners of any Partnership; (vi) advise, assist deposit any Units of any Partnership in a voting trust or encourage any person (including forming subject them to a “group” with any such person) proposing any of the foregoing; voting agreement or other agreement or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Partnership Agreement (American Real Estate Holdings L P)
Standstill. Unless approved by a majority of the Board of Directors, such majority to include both Independent Directors, neither the Investor and its Affiliates nor Stockholder and his Affiliates shall:
(a) The Investors In the case of the Investor and its Affiliates, beneficially own more than 2,231,333 shares of Common Stock, except through the exercise and purchase of additional Shares under the Warrants issued to the Investor under the Subscription Agreement, provided, however, that this restriction shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other person, apply during the Restricted Periodtime any person or entity unaffiliated with the Investor has, without the prior consent of the BoardCompany, such consent being determined by commenced and is continuing a simple majority vote tender offer involving the Company's securities or made a public announcement with respect to, and is pursuing, any form of acquisition of the Board (excluding the vote of any Investor Nominee):Company;
(ib) (A) commence a take-over bid for Subject to the provisions of this Agreement, make or in any securities way participate in any solicitation of the Corporation; (B) effectproxies to vote, seek, offer solicit any consent or propose seek to advise or influence any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring person or liquidation entity with respect to the Corporation voting of Common Stock or become a participant in any of its subsidiaries or disposition of more than a majority of election contest with respect to the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personCompany;
(iic) enter into Form, join or propose, offer or agree to enter into or engage in encourage the formation of any negotiations "group" within the meaning of Section 13(d)(3) of the 1934 Act with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businessesCommon Stock;
(iiid) engage in short sales of Deposit any of Common Stock into a voting trust or subject any such Common Stock to any arrangement or agreement with respect to the Equity Securities held by the Investorvoting thereof;
(ive) Initiate, propose or otherwise solicit proxies from shareholders the stockholders for the approval of one or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election more stockholder proposals with respect to the BoardCompany as described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person or entity to initiate any such shareholder proposal;
(vf) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election Subject to the Board or the board provisions of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) , seek election or seek to place a representative on the Board of Directors or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliatesDirectors;
(vig) adviseCall or seek to have called any meeting of the shareholders of the Company;
(h) Solicit, assist seek to effect, negotiate with or encourage provide any person information to any other party with respect to, or make any statement or proposal, whether written or oral, to the Board of Directors or otherwise make any public announcement (including forming except as required by law or the requirements of any stock exchange) whatsoever with respect to, any form of acquisition or business combination transaction involving the Company or any significant portion of its assets including, without limitation, a “group” merger, tender offer, exchange offer or liquidation, or any restructuring, recapitalization or similar transaction with respect to the Company except in compliance with Section 3(b). hereof; or
(i) Encourage any such person) proposing third party to do any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Subscription Agreement (Acrodyne Communications Inc)
Standstill. You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall:
(a) The Investors shall acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or right thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or exchange (and they shall cause their respective affiliates “Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the Company;
(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to notany Derivative Securities (as defined below);
(c) make or in any way participate, directly or indirectly, in any manner“solicitation” of “proxies” or “consents” (as such terms are used in the rules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in respect of or abstain from voting), directlyor seek to advise or influence any person with respect to the voting of (or the withholding of authority of or abstention from voting), indirectly any Voting Securities of the Company;
(d) unless expressly invited to do so by the Board of Directors of Vocus (or jointly any duly constituted committee thereof comprised wholly of independent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates, Representatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent, inquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger, consolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash or property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or businesses;
(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any Voting Securities of the Company;
(f) act alone, or in concert with any other personperson(s), during to seek to control or influence the Restricted Periodmanagement, board of directors, policies or affairs of the Company (including, without limitation, by seeking to place any individual on the prior consent Company’s board of directors, seeking to have called any meeting of the BoardCompany’s stockholders or seeking to advise, such consent being determined by a simple majority vote encourage or influence any person with respect to the voting of any securities of the Board Company for the election of individuals to the Company’s board of directors or to approve stockholder proposals); Non-Disclosure Agreement
(excluding g) take any action that might require the vote Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” or “(d)” of this sentence;
(h) request or propose that the Company or any Investor Nominee):of the Company’s Representatives amend or waive, or consider the amendment or waiver of, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public disclosure of such request or proposal;
(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (Awhether oral or written) commence with, act as a take-over bid financing source for or otherwise invest in any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation significant manner with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationto, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage encourage, any person (including forming a “group” in connection with any such person) proposing any of the foregoing; or
(viij) make any at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in relation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your controlled affiliates) and the Company; provided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement or take any action in furtherance of the foregoing, (each, by Vocus that it has entered into a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take definitive agreement with a Hostile Action, from and after: (i) the commencement or public announcement of third party for a take-over bid, which if completed would result in transaction involving the acquisition of more than 50% of the then outstanding voting equity securities of Vocus or all or substantially all of the Corporation by assets (on a consolidated basis) of the Company or (B) any person or group publicly announces or commences a tender or exchange offer to acquire Voting Securities of persons; or (ii) the approval or entering into by the Corporation ofVocus, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, whichthat, if completedsuccessful, would result in the acquisition by any such person or group of persons of beneficially owning more than 50% of the then outstanding voting securities Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Corporation Standstill Period will not terminate or more than a majority otherwise affect any of the assets other provisions of the Corporationthis Agreement.
Appears in 1 contract
Sources: Non Disclosure Agreement (GTCR Valor Merger Sub, Inc.)
Standstill. Effective as of the date of this Agreement and continuing until the close of the 2025 AGM, neither Coliseum nor any of its Affiliated Entities, will, whether acting alone or “jointly or in concert” (within the meaning of applicable securities laws) with any other person or entity, unless specifically consented to in writing by the Board, directly or indirectly:
(a) The Investors shall not make, or induce any person to make, any unsolicited take-over bid, material asset purchase or any other unsolicited merger or unsolicited going-private transaction involving a material portion of the assets or securities of Gildan or its Affiliated Entities (and they shall cause their respective affiliates to noteach an “Extraordinary Transaction”);
(b) other than in accordance with Section 2(a), engage in, participate in, or in any mannerway initiate, directlyany “solicitation” (as such term is defined in the Canada Business Corporations Act and in any applicable securities laws) of proxies or consents, indirectly with respect to the voting of any securities of Gildan;
(c) seek, alone or jointly or in concert with any other personothers, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer to requisition or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition call a meeting of the securityholders shareholders of Gildan, (ii) to obtain representation on, or nominate or propose the Corporation or nomination of any of its affiliates, propose or request to propose any nominee candidate for election to to, the Board or the board of directors of any of the Corporation’s affiliates (Board, other than pursuant to the nomination rights as expressly set forth provided in this Agreement, or (iii) or seek to effect the removal of any member of the Board or otherwise alter the board of directors of any composition of the Corporation’s affiliatesBoard, other than as expressly provided in this Agreement;
(vid) advisesubmit, assist or encourage induce any person (including forming a “group” with to submit, any such person) proposing any of shareholder proposal to Gildan or the foregoingBoard; or
(viie) make enter into any public announcement agreements or understandings with any person with respect to the foregoing, or assist or support any person to take any action in furtherance of inconsistent with the foregoing. Notwithstanding the foregoing, (each, a “Hostile Action”).
(b) The the provisions of this Section 5.3 3 shall cease to applyapply if, and after the Investors shall be permitted to take a Hostile Action, from and afterdate hereof: (i) a third party enters into any agreement with Gildan agreeing to acquire, in any manner, at least 50% or more of the outstanding shares, (ii) a third party enters into any agreement with Gildan agreeing to acquire, in any manner, a material portion of the assets of Gildan, or (iii) after the commencement or public announcement of a take-over bidproxy contest by a third party other than Coliseum or any of its Affiliated Entities, which if completed would result in there is elected to the acquisition Board, without the agreement of the Board as constituted immediately prior to the election, new directors comprising more than 50% of the then outstanding voting securities members of the Corporation Board as constituted immediately following such election. For greater certainty, nothing in this Section 3 shall limit in any respect Coliseum’s or its representatives ability to (i) communicate privately with the Board or any officers of Gildan with respect to any of the actions, activities or matters restricted by this Section 3 including to make one or more confidential proposals to the Board, provided that the Board shall be under no obligation to accept any person or group such proposal and that the party making such proposal shall not under any circumstances make any public disclosure of persons; or the making of such proposal except with the prior written consent of Gildan, (ii) make any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority, and (iii) tender securities to or vote in favour of an Extraordinary Transaction. For the approval avoidance of doubt the restrictions set forth in this Section 3 shall not affect the rights or entering into by the Corporation of, or the public announcement obligations of the approval or entering into by the Corporation of, Coliseum Nominee in his capacity as a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% director of the then outstanding voting securities of the Corporation or more than a majority of the assets of the CorporationCompany.
Appears in 1 contract
Standstill. Each Holder agrees that for a period (a“Restricted Period”) The Investors shall not commencing with the effective date of this Agreement pursuant to Section 3 and ending on the date that proxies for the Company’s 2011 annual meeting of stockholders are first solicited by the Company (and they shall cause their respective affiliates to notor March 31, 2011, if earlier), in neither such Holder nor any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted PeriodAffiliate of such Holder shall, without the prior written consent of the BoardCompany:
(a) acquire, such consent being determined offer to acquire, or agree to acquire, or encourage or suggest to any third party that they acquire, offer to acquire, or agree to acquire, directly or indirectly, by a simple majority vote purchase or otherwise, any material amount of assets of the Board (excluding the vote Company or any subsidiary or division thereof or of any Investor Nominee):successor or controlling person to the Company or any subsidiary or division thereof;
(ib) (A) commence a take-over bid for acquire, offer to acquire, or agree to acquire, or encourage or suggest to any third party that they acquire, offer to 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 the Corporation; Company or any subsidiary thereof, such that the Holders hold, together, more than the sum of (Bx) effect1% of the outstanding voting securities of the Company (including any such securities held prior to the contact by such Holder or Affiliate of a Holder) and plus (y) the percentage of securities beneficially held in the aggregate by the Holders and their Affiliates immediately after the Tender Offer Closing;
(c) make, seekor in any way participate, offer directly or propose indirectly, or encourage or suggest to any take-over bidthird party that they make, amalgamationor in any way participate, mergerin any “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission (“SEC”)), arrangement, business combination, re-organization, restructuring or liquidation seek to advise or influence any person or entity with respect to the Corporation voting of any voting securities of the Company with respect to (i) a transaction described in (a) or (b) above, (ii) any extraordinary transaction, such as a merger, reorganization or liquidation involving the Company or any subsidiary or division thereof, (iii) any material change in the present board of its subsidiaries directors or disposition of more than a majority management of the assets Company or any subsidiary or division thereof, including, but not limited to, any plans or proposals to change the number or the term of directors, to remove any director or to fill any existing vacancies on the board, or to change any material term of the Corporationemployment contract of any executive officer, (iv) the opposition of any person nominated by the Company’s management or nominating committee, (v) any material change in the Company’s capital structure or business, or (Cvi) purchase any Common Shares other action to or Convertible Securitiesseek to control or influence the management, except in connection with the acquisition Board of a person that holds Common Shares Directors or Convertible Securities by the Investor or an affiliate policies of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personCompany;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(viid) make any public announcement with respect to any matter described in subparagraphs (a), (b) and (c) above;
(e) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in connection with any of the foregoing;
(f) take any action in furtherance that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any of the foregoingevents described in clauses (a) through (e) above; or
(g) request the Company or any of its Affiliates, directly or indirectly, in any public manner to amend or waive any provision of this paragraph (each, a “Hostile Action”including this subparagraph).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Standstill Agreement (Integrated Silicon Solution Inc)
Standstill. Unless approved in advance in writing by the board of directors of the Company, the Investor and the Parent agree that, neither they nor any of their Representatives (aas defined below) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly acting on behalf of or in concert with the Investor or the Parent (or any other personof their Representatives) will, during until 16 months following the Restricted PeriodClosing (“Standstill Expiration”), without the prior consent directly or indirectly:
(a) Make any statement or proposal to any of the Board, such consent being determined by a simple majority vote Company’s Representatives or any of the Board Company’s stockholders (excluding other than a private communication with one or more members of the vote board of directors of the Company) regarding, or make any Investor Nominee):
public announcement, proposal, or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek, or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamationbusiness combination, merger, arrangementtender offer, business combinationexchange offer, re-organization, restructuring or liquidation with respect to similar transaction involving the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationsubsidiaries, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation liquidation, or similar transaction involving the Corporation Company or any of its affiliates or any part of their respective assets or businesses;
subsidiaries, (iii) engage in short sales any acquisition of any of the Equity Securities held by Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Investor;
Company’s loans, debt securities, equity securities, or assets, (iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or seek representation on the board of directors of any the Company or otherwise seek to control or influence the management, board of directors, or policies of the Corporation’s affiliates Company, or (v) any proposal, arrangement, or other than pursuant to statement that is inconsistent with the nomination rights expressly set forth in terms of this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates, including this Section 4.11;
(vib) adviseinstigate, encourage, or assist or encourage any person third party (including forming a “group” with any such personthird party) proposing to do, or enter into any discussions or agreements with any third party with respect to, any of the foregoingactions set forth in Section 4.11(a); or
(viic) make any public announcement or take any action in furtherance that would reasonably be expected to require the Company or any of its Affiliates to make a public announcement regarding any of the foregoingactions set forth in Section 4.11(a). In addition, until the Standstill Expiration, unless approved in advance in writing by the board of directors of the Company, the Investor and the Parent agree that, neither the Investor nor the Parent, nor any of the direct and indirect subsidiaries of the Parent or the Investor, nor any officer of Parent (each, a “Hostile Action”).
(b) The provisions within the meaning of Section 5.3 shall cease 3b-2 of the Securities Exchange Act of 1934, as determined by the Board of Directors of the Parent) acting on behalf of or in concert with the Investor or the Parent, will acquire (or propose or agree to applyacquire), and of record or beneficially, by purchase or otherwise, any loans, debt securities, equity securities, or assets of the Investors shall be permitted Company or any of its subsidiaries, or rights or options to take a Hostile Actionacquire interests in any of the Company’s loans, from and after: debt securities, equity securities, or assets, other than (i) equity securities acquired from the commencement or public announcement of a take-over bid, which if completed would result Company in the acquisition of more than 50% of the then outstanding voting exchange for equity securities of the Corporation Company currently held by the Investor, the Parent, any person of the direct and indirect subsidiaries of the Parent and the Investor or group any of persons; or such officers and (ii) the approval or entering into by the Corporation of, or the public announcement acquisition of the approval or entering into Shares as contemplated by this Agreement. For purposes of this Section 4.11, the Corporation ofterm “Representatives” means, a transaction or definitive agreement providing for a transactionas to any person, whichsuch person’s Affiliates, if completedand its and their respective directors, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationofficers, employees, managing members, general partners, agents, and consultants (including attorneys, financial advisors, and accountants).
Appears in 1 contract
Sources: Class a Common Stock Purchase Agreement (Dropbox, Inc.)
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not)During the Standstill Period, in each Investor hereby agrees that neither such Investor nor any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Periodof its Affiliates will, without the prior written consent of the BoardCompany, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
directly or indirectly: (i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or publicly propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationeffect, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join cause or participate in a group to so solicit, other than or in any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) way knowingly advise, assist or encourage any other person to effect, offer or publicly propose to effect or participate in, (A) any acquisition of Shares or of any rights, warrants or options to acquire, or securities convertible into or exchangeable or exercisable for, any Shares (including forming derivative securities representing the right to vote or economic benefit of any Shares), in each case, that would result in such Investor and its Affiliates jointly holding or otherwise having beneficial ownership of more than 29.99% of the total number of Shares; (B) any tender or exchange offer, merger or other business combination involving the Company or any of its subsidiaries; (C) any liquidation or dissolution with respect to the Company or any of its subsidiaries; or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company; (ii) form, join or in any way participate in a “group” (as defined under the 1▇▇▇ ▇▇▇) with respect to any securities of the Company (other than with each other and with their Affiliates); (iii) otherwise act, alone or in concert with others, to seek to control the management, Board or policies of the Company; (iv) take any action that would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or (v) enter into any discussions or arrangements with any such person) proposing third party with respect to any of the foregoing; or
(vii) make any public announcement or take any action in furtherance . Following the expiration of the foregoingStandstill Period, (each, a “Hostile Action”)the foregoing restrictions shall terminate and cease to be of any further force or effect.
(b) The provisions Notwithstanding anything to the contrary contained in this Agreement, if, at any time during the Standstill Period, a party that is not an Investor or any of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: its Affiliates (i) enters into an agreement with the commencement Company contemplating the acquisition (by way of merger, tender offer or public announcement of otherwise) of, or (ii) commences a take-over bidtender offer, which if completed would result was approved by the Board and is made to all stockholders of the Company for, in the acquisition of more than each case, at least 50% of the then outstanding voting securities capital stock of the Corporation by Company or all or substantially all of its assets, then the restrictions set forth in this Section 2 shall be suspended and cease to be of any person further force or group effect until the expiration or termination of persons; such agreement or (ii) the approval tender offer or entering into by the Corporation of, or until the public announcement of its withdrawal or abandonment.
(c) Notwithstanding the approval foregoing, nothing in this Agreement shall be construed to prevent any Investor from making any non-public proposal or entering into by the Corporation of, offer regarding a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of type that would otherwise be prohibited by Section 2(a) directly to the Corporation or more than a majority of the assets of the CorporationBoard.
Appears in 1 contract
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates Subject to not)Section 6.3, in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted PeriodInvestor hereby agrees that, without the prior consent approval of the BoardCompany, such consent being determined the Investor shall not, and shall not permit any controlled Affiliate to, (except as contemplated by a simple majority vote of this Agreement or as approved or invited by the Board (excluding the vote of any Investor NomineeCompany):
(ia) (A) commence a take-over bid for acting alone or with others, acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase, merger, business combination or in any other manner, any voting equity securities of the CorporationCompany if, after such acquisition, the Investor, together with its controlled Affiliates, would own more than the Threshold; provided that any investment by the Investor or an Affiliate of the Investor, or any of their respective pension or employee benefit plans, in third-party mutual funds or other similar passive investment vehicles that hold interests in securities of the Company or any of its Affiliates shall not be taken into account for the purpose of this subparagraph (Ba) effector otherwise prohibited by this Section 6.1 (provided that, seekneither the Investor nor any of its controlled Affiliates shall request or direct that the trustee or other administrator of any such plans, offer funds or propose other similar passive investment vehicles acquire equity securities of the Company);
(b) engage in any take-over bid“solicitation” of “proxies” (as such terms are used in the rules promulgated by the Commission) to vote any voting equity securities of the Company, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation seek to advise or influence any Person with respect to the Corporation voting of any voting equity securities of the Company (other than in connection with the election of the Investor Designee);
(c) form, join or in any way participate in a “group” as defined in Section 13(d)(3) (a “13D Group”) of the Exchange Act, in connection with any of the foregoing clauses (a) and (b) (other than a 13D Group that includes only the Investor and its Affiliates or that relates to the Investor Designee);
(d) publicly disclose any intention, plan or arrangement inconsistent with the foregoing clauses (a) through (c); or
(e) enter into any agreement or any arrangement with any other Person in connection with intentionally facilitating any transaction that is restricted by clauses (a) through (c); provided that, notwithstanding anything in this Agreement to the contrary, (x) the Investor and its Affiliates shall not be prohibited or restricted from making (i) any confidential offers or proposals to the Company’s board of directors or engaging in negotiation or discussions with the Company with respect thereto or (ii) any confidential request for the Company or its subsidiaries board of directors to waive, amend or disposition provide a release of more than a majority any provision of this Section 6.1 (whether or not in connection with such offer or proposal), (y) the Investor and its Affiliates may vote their shares of Common Stock in any manner they wish and (z) the provisions of this Section 6.1 shall not, and are not intended to, (i) restrict the manner in which any Investor Designee may (A) vote on any matter submitted to the Company’s board of directors, (B) participate in deliberations or discussions of the assets Company’s board of directors (including making suggestions or raising issues to the Company’s board of directors) in his or her capacity as a member of the CorporationCompany’s board of directors, or (C) purchase take actions required by his or her exercise of legal duties and obligations as a member of the Company’s board of directors or refrain from taking any Common Shares action prohibited by his or Convertible Securitiesher legal duties and obligations as a member of the Company’s board of directors, except in connection with the acquisition of a person that holds Common Shares (ii) prohibit or Convertible Securities by restrict the Investor or an affiliate its Affiliates from responding to any inquiries from any stockholders of the Investor, where the Common Shares of Convertible Securities held by Company as to such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations Person’s intention with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer the voting or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any tendering of its affiliates or any part of their respective assets or businesses; or
(B) any restructuringCommon Stock, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales restrict the Investor or its Affiliates from taking any action they deem necessary to cause the Investor Designee to be elected to the Company’s board of directors or any committee thereof or causing or effecting the issuance and acquisition of the Equity Securities held by the Investor;
Additional Shares, (iv) solicit proxies prohibit the Investor or its Affiliates from shareholders acquiring Company Securities issued by way of a Stock Event or formwhich are issued to its directors, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present prohibit the Investor or request to present at any meeting its Affiliates from selling their shares of the securityholders of the Corporation Common Stock or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist prohibit the Investor or encourage any person (including forming a “group” its Affiliates from complying with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”)applicable Law.
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Equity Purchase Agreement (Arcturus Therapeutics Ltd.)
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not)During the Standstill Period, in the Investor hereby agrees that neither the Investor nor any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Periodof its Affiliates will, without the prior written consent of the BoardCompany, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
directly or indirectly: (i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or publicly propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationeffect, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join cause or participate in a group to so solicit, other than or in any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) way knowingly advise, assist or encourage any other person to effect, offer or publicly propose to effect or participate in, (A) any acquisition of Shares or of any rights, warrants or options to acquire, or securities convertible into or exchangeable or exercisable for, any Shares (including forming derivative securities representing the right to vote or economic benefit of any Shares), in each case, that would result in the Investor and its Affiliates jointly holding or otherwise having beneficial ownership of more than 29.99% of the total number of Shares; (B) any tender or exchange offer, merger or other business combination involving the Company or any of its subsidiaries; (C) any liquidation or dissolution with respect to the Company or any of its subsidiaries; or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of the Company; (ii) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to any securities of the Company (other than with each other and with their Affiliates); (iii) otherwise act, alone or in concert with others, to seek to control the management, Board or policies of the Company; (iv) take any action that would reasonably be expected to force the Company to make a public announcement regarding any of the types of matters set forth in clause (i) above; or (v) enter into any discussions or arrangements with any such person) proposing third party with respect to any of the foregoing; or
(vii) make any public announcement or take any action in furtherance . Following the expiration of the foregoingStandstill Period, (each, a “Hostile Action”)the foregoing restrictions shall terminate and cease to be of any further force or effect.
(b) The provisions Notwithstanding anything to the contrary contained in this Agreement, if, at any time during the Standstill Period, a party that is not the Investor or any of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: its Affiliates (i) enters into an agreement with the commencement Company contemplating the acquisition (by way of merger, tender offer or public announcement of otherwise) of, or (ii) commences a take-over bidtender offer, which if completed would result was approved by the Board and is made to all stockholders of the Company for, in the acquisition of more than each case, at least 50% of the then outstanding voting securities capital stock of the Corporation by Company or all or substantially all of its assets, then the restrictions set forth in this Section 2 shall be suspended and cease to be of any person further force or group effect until the expiration or termination of persons; such agreement or (ii) the approval tender offer or entering into by the Corporation of, or until the public announcement of its withdrawal or abandonment.
(c) Notwithstanding the approval foregoing, nothing in this Agreement shall be construed to prevent the Investor from making any non-public proposal or entering into by the Corporation of, offer regarding a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of type that would otherwise be prohibited by Section 2(a) directly to the Corporation or more than a majority of the assets of the CorporationBoard.
Appears in 1 contract
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other personExecutive agrees that, during the Restricted Period, without the prior consent approval of a majority of the members of the Board, such consent being determined by a simple majority vote Executive will not and will cause his Affiliates or any persons with whom any of the Board foregoing has formed a “group” (excluding within the vote meaning of any Investor Nominee):
(iSection 13(d)(3) of the Exchange Act) (Ain each case, including any applicable successors and assigns) commence a take-over bid for not to (together, the “Restricted Persons”) (a) make any securities of the Corporation; (B) effectpublic announcement with respect to, seekenter into any agreement to, offer or seek or propose to enter into, directly or indirectly any take-over bidtender or exchange offer, amalgamationrestructuring, recapitalization, merger, arrangement, acquisition transaction or other business combination, re-organization, restructuring or liquidation with respect to combination involving the Corporation Company or any of its subsidiaries or disposition their securities or assets, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of more than a majority “proxies,” “consents” or “authorizations” (as such terms are used in the proxy rules of the assets of Securities and Exchange Commission promulgated under the CorporationExchange Act) to vote, or (C) purchase seek to advise or influence any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
the voting of, any common stock of the Company (Athe “Common Stock”) acquisitionor any other securities of the Company entitled to vote in the election of directors of the Company, amalgamationor securities convertible into, plan or exercisable or exchangeable for common stock or such other securities (collectively, “Voting Securities”), or securities of arrangementany of the Company’s subsidiaries or call a special stockholders’ meeting or make a stockholder proposal (including pursuant to Rule 14a-8 under the Exchange Act) for any such purpose, merger(c) otherwise act, tender offer alone or take-over bidin concert with others, exchange offer to seek representation or other business combination transaction relating to control, control or change the Corporation Board, governing instruments, stockholders, policies or affairs of the Company or any of its affiliates subsidiaries, (d) directly or indirectly enter into negotiations, arrangements or understandings with any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of other person with respect to any of the Equity Securities held by the Investor;
foregoing activities or propose any of such activities, (ive) solicit proxies from shareholders or form, join or in any way form, join or in any way participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) in connection with any such person) proposing any of the foregoing; or
(vii) make any public announcement Voting Securities, or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.Company’s subsidiaries or
Appears in 1 contract
Sources: Separation and General Release Agreement (Harbinger Group Inc.)
Standstill. Unless approved in advance in writing by the board of directors of the Company, the Investor and the Parent agree that, neither they nor any of their Representatives (aas defined below) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly acting on behalf of or in concert with any other personthe Investor or the Parent will, during until 365 days following the Restricted Period, without the prior consent effective date of the BoardQualified IPO (“Standstill Expiration”), such consent being determined by a simple majority vote directly or indirectly:
(a) Make any statement or proposal to any of the Board Company’s directors, officers, attorneys, or financial advisors or any persons known to the Investor or the Parent to be one of the Company’s stockholders (excluding other than a private communication with one or more members of the vote board of directors or executive officers of the Company) regarding, or make any Investor Nominee):
public announcement, proposal, or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek, or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamationbusiness combination, merger, arrangementtender offer, business combinationexchange offer, re-organization, restructuring or liquidation with respect to similar transaction involving the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationsubsidiaries, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) including any restructuring, recapitalization, liquidation liquidation, or similar transaction involving the Corporation or undertaken in connection with any of its affiliates or the foregoing, (ii) any part of their respective assets or businesses;
(iii) engage in short sales acquisition of any of the Equity Securities 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, other than (A) equity securities acquired from the Company in exchange for equity securities of the Company currently held by the Investor;
Investor (ivsubject to any agreement restricting such exchange entered into by Investor or Parent) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour and (B) the acquisition of the nominees of management of the Corporation for election to the Board;
Shares as contemplated by this Agreement, (viii) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or seek representation on the board of directors of the Company or otherwise seek to control or influence the management, board of directors, or policies of the Company, or (iv) any proposal, arrangement, or other statement that is inconsistent with the terms of this Agreement, including this Section 4.11;
(b) 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 rights or options to acquire interest in any of the CorporationCompany’s affiliates (loans, debt securities, equity securities, or assets, other than pursuant to (i) equity securities acquired from the nomination rights expressly set forth Company in this Agreement) or seek the removal of any member exchange for equity securities of the Board Company currently held by the Investor (subject to any agreement restricting such exchange entered into by Investor or Parent), the board of directors of Parent, any of the Corporation’s affiliates;direct and indirect subsidiaries of the Parent and the Investor or any of such officers and (ii) the acquisition of the Shares as contemplated by this Agreement.
(vic) adviseinstigate, encourage, or assist or encourage any person third party (including forming a “group” with any such personthird party) proposing to do, or enter into any discussions or agreements with any third party with respect to, any of the foregoingactions set forth in Section 4.11(a) or Section 4.11(b); or
(viid) make any public announcement or take any action in furtherance that would reasonably be expected to require the Company or any of its Affiliates to make a public announcement regarding any of the foregoingactions set forth in Section 4.11(a) or Section 4.11(b). For purposes of this Section 4.11, the term “Representatives” means the direct and indirect subsidiaries of Parent or the Investor, the directors of Parent, the officers of Parent, the officers or managers (each, a “Hostile Action”).
(bas such term is used in § 18-402 of the Delaware Limited Liability Company Act) The provisions of Section 5.3 shall cease to applythe Investor, and all agents acting at the Investors shall be permitted to take a Hostile Actiondirection of an officer or director of Parent, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% an officer or manager of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation ofInvestor, or the public announcement of the approval or entering into by the Corporation ofincluding, a transaction or definitive agreement providing for a transactionwithout limitation, whichattorneys, if completedfinancial advisors, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationand accountants.
Appears in 1 contract
Standstill. (a) The Investors shall not (During the Restricted Period, no Investor or ▇▇▇▇▇▇ shall, and they each Investor and ▇▇▇▇▇▇ shall cause their respective affiliates to not), in the Investor Group and any manner, directly, indirectly or jointly person acting on behalf of or in concert with any other personthe Investor Group to not, during the Restricted Perioddirectly or indirectly, without the prior written consent of the Board, such consent being determined by a simple majority vote Company:
(1) except as permitted pursuant to the terms of the Board Letter Agreement, and except for Newly Acquired Common Shares in an amount not to exceed the Ownership Limit applicable to Common Shares (excluding as defined in the vote Declaration of Trust), acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any Investor Nominee):Equity Securities, or any direct or indirect right to acquire any Equity Securities,
(i2) (A) commence a take-over bid for enter, agree to enter, propose, seek or offer to enter into or facilitate any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organizationrecapitalization, restructuring restructuring, tender offer, transaction involving a material amount of the Company’s assets or liquidation other extraordinary transaction involving the Company or any of its subsidiaries,
(3) initiate, encourage, make, or in any way participate or engage in, any “solicitation” of “proxies” or “consent solicitation” (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the Corporation voting of, any Preferred Shares, Common Shares (including, without limitation, any Newly Acquired Common Shares) or other Equity Securities (including, for the avoidance of doubt, indirectly by means of communication with the press or the media),
(4) nominate or recommend for nomination a person for election at any shareholder meeting at which trustees of the Company’s board of trustees (the “Board”) are to be elected,
(5) submit any shareholder proposal for consideration at, or bring any other business before, any shareholder meeting of the Company,
(6) 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 Preferred Shares, Common Shares (including, without limitation, any Newly Acquired Common Shares) or other Equity Securities,
(7) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of the Company,
(8) otherwise act, alone or in concert with others, to seek to control or influence the management, policies, business or corporate structure of the Company,
(9) demand a copy of the Company’s list of shareholders or its other books and records pursuant to any statutory right, whether under the laws of the State of Maryland or any other jurisdiction,
(10) commence, encourage or support any derivative action in the name of the Company, or any class action against the Company or any of its subsidiaries officers or disposition of more than a majority trustees in order to, directly or indirectly, effect any of the assets actions expressly prohibited by this Agreement or cause the Company to amend or waive any of the Corporationprovisions of this Agreement (provided that, for the avoidance of doubt, this clause shall not prevent any Investor or ▇▇▇▇▇▇ from bringing an action to enforce the provisions of this Agreement),
(11) disclose any intention, plan or arrangement prohibited by, or (C) purchase any Common Shares or Convertible Securitiesinconsistent with, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investorforegoing, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi12) advise, assist or encourage or enter into any person (including forming a “group” discussions, negotiations, agreements or arrangements with any such person) proposing other persons in connection with any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions During the Restricted Period, no Investor or ▇▇▇▇▇▇ shall (and Investors and ▇▇▇▇▇▇ shall cause the Investor Group to not), directly or indirectly, without the prior written consent of Section 5.3 shall cease to applythe Company, and the Investors shall be permitted to take a Hostile Action, from and after: (i) make any request directly or indirectly, to amend or waive any provision of this Section 3 (including this sentence), (ii) take any action challenging the commencement validity or enforceability of any provision of this Section 3 (including this sentence) or make any public disclosure in respect thereof or (iii) take any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a take-over bidbusiness combination, which if completed would result merger or other type of transaction described in this Section 3 with the acquisition Company.
(c) As used herein, the term “Derivative Security” means (i) any subscription, option, conversion right, warrant, phantom stock right or other agreement, security or commitment of more than 50% any kind obligating the Company or any of its subsidiaries to issue, grant, deliver or sell, or cause to be issued, granted, delivered or sold, any Common Shares or Preferred Shares of the then outstanding voting securities Company or any security convertible into, or exchangeable for, any Common Shares or Preferred Shares of the Corporation by any person or group of persons; Company or (ii) the approval or entering into any obligations measured by the Corporation of, price or the public announcement value of any Common Shares or any Preferred Shares of the approval or entering into by the Corporation ofCompany, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group case of persons of more than 50% each of the then outstanding voting securities foregoing clauses (i) and (ii), whether any of the Corporation foregoing is exercisable immediately, only after the passage of time or upon the satisfaction of one or more than a majority of the assets of the Corporationconditions.
Appears in 1 contract
Standstill. As additional consideration of the Customer’s issuance of the Shares and the Customer’s agreements under this Agreement, Veolia agrees that, unless approved in advance by the Board, from and after the date of this Agreement until the expiration of the Standstill Period (a) The Investors shall as defined herein), Veolia, will, and Veolia will cause each of its Affiliates and use reasonable efforts to cause all other persons under its control or direction not (and they shall cause their respective affiliates to not)to, directly or indirectly, alone or in concert with others, in any manner:
(1) propose or publicly announce or otherwise disclose any intention to propose or enter into or agree to enter into, directly, indirectly singly or jointly or in concert together with any other person, during the Restricted Perioddirectly or indirectly, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organizationacquisition or other similar transaction relating to the assets or securities of the Customer or any of its subsidiaries, restructuring (ii) any restructuring, recapitalization, reorganization or liquidation similar transaction with respect to the Corporation Customer or any of its subsidiaries or disposition of more than (iii) any tender or exchange offer, or share exchange, for or involving, the Common Stock, whether or not such transaction involves a majority change-in-control of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personCustomer;
(ii2) enter into or propose, offer or agree to enter into initiate or engage in any negotiations solicitation of proxies or written consents to vote or withhold from voting) any securities of the Customer having the power whether contractual, organic, conditional or otherwise (“voting securities”), or conduct any precatory or other non-binding referendum with respect to any:
any voting securities of the Customer, or assist or participate in any solicitation of proxies or written consents with respect to any voting securities of the Customer, or otherwise become a “participant” in a “solicitation” (A) acquisitionas such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, amalgamationrespectively, plan under the Exchange Act), to vote any securities of arrangement, merger, tender offer the Customer in opposition to any published recommendation or take-over bid, exchange offer or other business combination transaction relating proposal of the Board made to all of the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businessesCustomer’s stockholders;
(iii3) engage acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase (private or open-market), tender or exchange offer, through the acquisition of control of another person, by forming or 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 (i) interests in short sales any of the Customer’s indebtedness, or (ii) economic ownership of any Common Stock (including any rights decoupled from the underlying securities of the Customer), except pursuant to this Agreement;
(4) advise, encourage or influence any person with respect to the voting of (or execution of a written consent in respect of), or disposition of, any securities of the Customer, other than in accordance with a published recommendation made by the Board to all of the Customer’s stockholders;
(5) 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;
(6) enter into any discussions, negotiations, agreements or understandings with any person or entity with respect to any of the foregoing, or advise, assist, knowingly encourage or seek to persuade any person to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(7) make any request, submit any proposal or take any action to amend the terms of this Section 23, or challenge the validity or enforceability of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicitprovisions of this Section 23, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to non-public communications with the Board that would not be reasonably determined to require or the board of directors of result in public disclosure obligations for any of the Corporation’s affiliates party; (other than 8) take, or solicit, cause or encourage others to take, any action that require disclosure by Veolia pursuant to Item 4 of Schedule 13D under the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoingExchange Act; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Operations, Maintenance and Management Agreement (Aqua Metals, Inc.)
Standstill. The ▇▇▇▇ Parties agree that, for a period of 10 years from the date of this Agreement, unless such shall have been specifically invited in writing by ▇▇▇▇ or if such has been approved by the Board of Directors of ▇▇▇▇ at a duly and validly called and held meeting of (or a duly executed unanimous written consent action of) the Board of Directors of ▇▇▇▇ or by the stockholders of ▇▇▇▇ at a duly and validly called and held meeting of the stockholders of ▇▇▇▇ (or, if such majority written consent action of the stockholders of ▇▇▇▇ comports with ▇▇▇▇’▇ Bylaws, a duly executed majority written consent action of the stockholders of ▇▇▇▇), the ▇▇▇▇ Parties shall not, and shall not in any manner (directly or indirectly through Agents): (a) The Investors shall not acquire any ▇▇▇▇ stock (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
than (i) upon exercise of stock options before their termination pursuant to Section 4 of this Agreement, or (Aii) commence upon a take-over bid for any securities stock split, stock dividend, recapitalization, reorganization or distribution in which they receive ▇▇▇▇ stock pro rata with all other holders of the Corporation; ▇▇▇▇ common stock), (Bb) effect, effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any take-over bidway assist any other person to effect or seek, amalgamationoffer or propose (whether publicly or otherwise) to effect or participate in, merger, arrangement, business combination, re-organization, restructuring (i) any acquisition of any securities (or liquidation with respect to the Corporation beneficial ownership thereof) or assets of ▇▇▇▇ or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationsubsidiaries, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into any tender or proposeexchange offer, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer merger or other business combination transaction relating to the Corporation involving ▇▇▇▇ or any of its affiliates or any part of their respective assets or businesses; or
subsidiaries, (Biii) any recapitalization, restructuring, recapitalizationliquidation, liquidation dissolution or similar other extraordinary transaction involving the Corporation with respect to ▇▇▇▇ or any of its affiliates subsidiaries, or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders 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 ▇▇▇▇; (c) form, join or in any way participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to ▇▇▇▇; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of ▇▇▇▇; or (e) enter into any arrangements with any such person) proposing third party with respect to any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Master Dispute Resolution Agreement (Therapeutic Solutions International, Inc.)
Standstill. From the date hereof until the date that is the later of (a) The Investors shall not three (3) years from the date hereof and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other person, during (b) the Restricted Perioddate upon which there are no directors designated by the Shareholders who are members of the Board, without the prior consent of the BoardCompany, such consent being determined by a simple majority vote of the Board Shareholders and their Affiliates (excluding the vote of any Investor Nominee):
including commonly controlled or managed investment funds) shall not, and shall not offer or agree to, (i) (A) commence a take-over bid for directly or indirectly purchase or acquire, agree to acquire, or offer to acquire, beneficial ownership of any equity or debt securities of the Corporation; (B) effectCompany, seekany warrant or option to purchase such securities, offer any security convertible into any such securities, any options, convertible securities or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to Warrants of the Corporation Company or any of its subsidiaries other right to acquire such securities, if, after giving effect to such acquisition, the Shareholders and their Affiliates, individually or disposition of in the aggregate, would Beneficially Own more than a majority thirty percent (30%) of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Voting Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) directly or indirectly propose, enter into or propose, offer or agree to enter into any merger, business combination, recapitalization, restructuring, change of control transaction or other extraordinary transaction involving any Group Company, (iii) make, or in any way participate or engage in in, directly or indirectly, any negotiations solicitation of proxies to vote, or seek to advise or influence any person with respect to any:
(A) acquisitionthe voting of, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales voting securities of any of the Equity Securities held by the Investor;
Group Company, (iv) solicit proxies from shareholders bring any action or otherwise act to contest the validity of the restrictions set forth in this Section 2.5, or seek a release of such restrictions, (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of any Group Company except for any group constituting solely of the Shareholders and its Affiliates, (vi) seek the removal of any directors from the Board or a change in the size or composition of the Board (including voting for any directors not nominated by the Board), except as otherwise provided in the Articles of Amendment or this Agreement, (vii) except to so solicitthe extent permitted under this Section 2.5, propose or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any possible purchase or sale of any securities or assets of any Group Company (other than any solicitation securities owned by the Shareholders), (viii) call, request the calling of, or otherwise seek or assist in the calling of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any a special meeting of the securityholders shareholders of the Corporation Company, (ix) deposit any Securities or Common Stock in a voting trust or similar arrangement or subject any Securities or Common Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any Securities or Common Stock to any person not affiliated with the Shareholders or Company management; (x) enter into any swap or any other agreement, transaction or series of its affiliates transactions that ▇▇▇▇▇▇ or through action by written consent any proposal for consideration for action by securityholderstransfers, requisition a meeting in whole or in part, directly or indirectly, the economic consequences of ownership of the securityholders Warrants or shares of Common Stock underlying the Corporation Warrants, whether any such transaction, swap or series of transactions is to be settled by delivery of securities, in cash or otherwise (xi) (a) finance (or arrange financing for) any of its affiliatesPerson or (b) otherwise knowingly encourage or advise another Person, propose or request to propose any nominee for election to the Board or the board of directors of in each case, in connection with any of the Corporation’s affiliates foregoing; or (other than pursuant xii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or make, or take, any action that would reasonably be expected to cause the nomination rights expressly set forth in this Agreement) or seek Company to make a public announcement regarding any intention of the removal Shareholders to take an action that would be prohibited by the foregoing; provided, however, that the foregoing shall not restrict the ability of any member of the Board pursuant to the terms of the Articles of Amendment or this Agreement from exercising such Person’s fiduciary duties provided thereunder or the board of directors of any ability of the Corporation’s affiliates;
(vi) advise, assist Shareholders to make private proposals to the Board or encourage any person (including forming a “group” with any such person) proposing any the Chief Executive Officer of the foregoing; or
(vii) make Company regarding any public announcement or take any action in furtherance merger, business combination, recapitalization, restructuring, change of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a control transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by other extraordinary transaction involving any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the CorporationGroup Company.
Appears in 1 contract
Standstill. Investor agrees that, except as specifically provided in the Securities Purchase Agreement or the Related Documents, for a period of three (a3) The Investors shall years following the Effective Date (the “Standstill Period”), the Investor will not (and they shall cause their respective affiliates to not), in Investor will ensure that its Subsidiaries (and any manner, directly, indirectly or jointly Person acting on behalf of or in concert with Investor or any other personSubsidiaries) will not), during the Restricted Perioddirectly or indirectly, without the prior written consent of the BoardCompany, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of the Corporation; Company or any of its Subsidiaries or Affiliates, any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (Bii) effectenter, seekagree to enter, propose, seek or offer to enter into or propose facilitate any take-over bid, amalgamation, merger, arrangement, business combination, re-organizationrecapitalization, restructuring or liquidation other extraordinary transaction involving the Company or any of its Subsidiaries or Affiliates, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to advise or influence any Person with respect to the Corporation or voting of, any of its subsidiaries or disposition of more than a majority voting securities of the assets of the CorporationCompany, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or in any way participate in a group to so solicit, other than any solicitation “group” (within the meaning of proxies voting in favour Section 13(d)(3) of the nominees of management Exchange Act) with respect to any voting securities of the Corporation for election to the Board;
Company, (v) present call, request the calling of, or request to present at any otherwise seek or assist in the calling of a special meeting of the securityholders shareholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholdersCompany, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) advise, assist or encourage or enter into any person (including forming a “group” discussions, negotiations, agreements or arrangements with any such personthird parties in connection with the foregoing. Nothing in this Section 5.1 will limit (x) proposing the Investor’s ability to vote or otherwise exercise rights under, or to transfer to any Permitted Transferee, its Preferred Shares or Common Stock or (y) the ability of any Preferred Stock Director to vote or otherwise exercise his or her fiduciary duties as a member of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”)Board.
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Investor Rights Agreement (Sentio Healthcare Properties Inc)
Standstill. Each Stockholder hereby agrees that, from and after the date hereof, the Stockholder and its Affiliates shall not, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(a) The Investors shall not sell, transfer, tender, pledge, encumber, assign or otherwise dispose of (and they shall cause their respective affiliates to notcollectively, a "Transfer"), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, any or all of the Subject Shares of the Stockholder or any of its Affiliates;
(b) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire Common Stock or any other securities of Target, or any assets of Target or any Subsidiary or division thereof;
(c) make, or in any mannerway participate in, directlydirectly or indirectly, indirectly or jointly or any "solicitation" of "proxies" (as such terms are used in concert with any other person, during the Restricted Period, without the prior consent rules of the BoardSecurities and Exchange Commission) to vote (including by consent), such consent being determined by a simple majority vote of the Board (excluding the vote of or seek to advise or influence any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation Person with respect to the Corporation voting of, any voting securities of Target (including, without limitation, by making publicly known the position of such Stockholder or any of its subsidiaries or disposition Affiliates on any matter presented to stockholders of more Target), other than a majority to recommend that stockholders of Target vote in favor of the assets of Merger and the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personMerger Agreement;
(iid) enter into or propose, offer or agree submit to enter into or engage in Target any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to stockholder proposal under Rule 14a-8 under the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businessesExchange Act;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(viie) make any public announcement with respect to, or take submit a proposal for, or offer of (with or without conditions) any action extraordinary transaction involving Target or its securities or assets;
(f) form, join or in furtherance any way participate in a "group" (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing, (each, a “Hostile Action”).;
(bg) The provisions seek in any way, directly or indirectly, to have any provision of this Section 5.3 shall cease 3.1 amended, modified or waived; or
(h) otherwise take, directly or indirectly, any actions with the purpose or effect of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to applyhave the effect of preventing, and impeding, interfering with or adversely affecting the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% consummation of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into transactions contemplated by the Corporation of, Merger Agreement or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationits ability to perform its obligations under this Agreement.
Appears in 1 contract
Standstill. 5.1 Each of the DW Parties agrees that, for a period commencing with the date of this Agreement and ending on the date which is the tenth business day prior to the last day on which a stockholder can submit director nominations to the Company for consideration at the 2008 Annual Meeting of Stockholders (aas provided in Article III, Section 3.2 of the Company Bylaws) The Investors shall not (and they shall cause their respective affiliates to notthe “Restricted Period”), in none of the DW Parties nor any manner, directly, indirectly or jointly or in concert with Affiliate of any other person, during the Restricted PeriodDW Party shall, without the prior written consent of the BoardCompany:
(a) acquire, such consent being determined offer to acquire, or agree to acquire, or encourage or suggest to any third party that they acquire, offer to acquire, or agree to acquire, directly or indirectly, by a simple majority vote purchase or otherwise, any material amount of assets of the Board (excluding the vote Company or any subsidiary or division thereof or of any Investor Nominee):such successor or controlling person;
(ib) encourage or suggest to any third party that such party (Aincluding any of its Affiliates) commence acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, an aggregate of 20% or more (including any such securities held prior to the contact by such DW Party or Affiliate of a take-over bid for DW Party) of any voting securities or direct or indirect rights to acquire any voting securities of the Corporation; Company or any subsidiary thereof;
(Bc) effectmake, seekor in any way participate in, offer directly or propose indirectly, or encourage or suggest to any take-over bidthird party that they make, amalgamationor in any way participate in, mergerany “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission (“SEC”)), arrangement, business combination, re-organization, restructuring or liquidation seek to advise or influence any person or entity with respect to the Corporation voting of any voting securities of the Company with respect to (i) a transaction described in (a) or (b) above, (ii) any extraordinary transaction, such as a merger, reorganization or liquidation involving the Company or any subsidiary or division thereof, (iii) any material change in the present board of its subsidiaries directors or disposition of more than a majority management of the assets Company or any subsidiary or division thereof, including, but not limited to, any plans or proposals to change the number or the term of directors, to remove any director or to fill any existing vacancies on the Corporationboard, except as provided in this Agreement; or (iv) the opposition of any person nominated by the Company’s nominating committee; provided, however, that the prohibition in this subparagraph (c) shall not apply to any transaction, or (C) purchase any Common Shares change in the present board of directors or Convertible Securitiesmanagement, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities which has been approved by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personCompany Board;
(iid) enter into or proposesubmit any stockholder proposal pursuant to Rule 14a-8 of Regulation 14A of the Securities Exchange Act of 1934, offer or agree to enter into or engage in as amended (the “Exchange Act”), for consideration at the 2007 Annual Meeting of Stockholders;
(e) make any negotiations public announcement with respect to any:
any matter described in subparagraphs (Aa) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
through (Bc) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businessesabove;
(iiif) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or in any way participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” as defined in Section 13(d)(3) of the Exchange Act, in connection with any such person) proposing any of the foregoing; or
(viig) make any public announcement or take any action in furtherance that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any of the foregoing, events described in clauses (each, a “Hostile Action”)a) through (c) above.
(b) The provisions of Section 5.2 ▇▇▇▇▇ Partners, L.P. agrees to withdraw immediately the stockholder proposal which it submitted to the Company by letter dated August 24, 2006, related to the Company’s Rights Agreement.
5.3 shall cease to applyDuring the Restricted Period, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% none of the then outstanding voting securities DW Parties nor any affiliate of any DW Party will nominate or submit for nomination any person for election to the Company’s Board of Directors, as contemplated by Article III, Section 3.2 of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the CorporationCompany Bylaws.
Appears in 1 contract
Sources: Shareholder Agreement (Wegener Corp)
Standstill. (a) The Investors Each Investor agrees that, during the Standstill Period (unless specifically requested in writing by the Company, acting through a resolution of a majority of the Company’s directors), such Person shall not (not, and they shall cause their respective affiliates to not)each of its Investor Affiliates not to, directly or indirectly, in any manner, directly, indirectly or jointly alone or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):others:
(i) make, engage in, or in any way participate in, directly or indirectly, any “solicitation” of proxies (Aas 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)) commence a take-over bid for or consents to vote, or seek to advise, encourage or influence any person with respect to the voting of any securities of the CorporationCompany 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 any contested “solicitation” (as such terms are defined or used under the Exchange Act) for the election of directors with respect to the Company, other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board of Directors at any stockholder meeting, or make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(ii) form, join, encourage, influence, advise or in any way participate in any “group” (as such term is defined in Section 13(d)(3) of the Exchange Act) with any persons who are not such Person’s Investor Affiliates with respect to any securities of the Company or otherwise in any manner agree, attempt, seek or propose to deposit any securities of the Company or any securities convertible or exchangeable into or exercisable for any such securities in any voting trust or similar arrangement, or subject any securities of the Company to any arrangement or agreement with respect to the voting thereof, except as expressly permitted by this Agreement;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities that would result in such Person (together with such Person’s Investor 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 Company Common Stock outstanding at such time (not including shares of Company Common Stock issuable upon conversion of Notes and New Notes held as of immediately following the Closing); provided that nothing herein will require any shares of Company Common Stock or other securities to be sold to the extent such Person and such Person’s Investor Affiliates, collectively, exceed the ownership limit under this paragraph as the result of a share repurchase or any other Company actions that reduces the number of outstanding shares of Company Common Stock. For the avoidance of doubt, this Section 4.06(a)(iii) shall not restrict conversion of the Notes and New 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 4.06(a)(iii), no securities Beneficially Owned by a portfolio company of such Person or its Affiliates will be deemed to be Beneficially Owned by such Person or any of its Affiliates only so long as (x) such portfolio company would not be deemed an Affiliate of such Person for purposes of this Section 4.06 under the definition of “Affiliate” in this Agreement, (y) neither such Person nor any of its Investor 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 Person or any of its Affiliates is a member of a group (as such term is defined in Section 13(d)(3) of the Exchange Act) with that portfolio company with respect to any securities of the Company;
(iv) transfer, directly or indirectly, through swap or hedging transactions or otherwise, Company Common Stock Beneficially Owned by such Person or its Affiliates or any economic or voting rights decoupled from the underlying securities held by such Person or its Affiliates to any Third Party that, to the knowledge of such Person 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 (x) such Person or its Affiliates, as applicable, shall provide written notice to the Company 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 and New Notes or Company Common Stock to any Third Party 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 and (y) nothing in this clause (iv) shall in any way prohibit, limit or restrict any transfer (A) pursuant to a Permitted Loan or any foreclosure thereunder, (B) pursuant to a Third Party Tender/Exchange Offer or pursuant to a merger, consolidation or similar transaction entered into by the Company, (C) in a bona fide underwritten public offering (or an equivalent transaction under Rule 144A), in a block sale to one or more broker-dealers in connection with a transaction pursuant to Rule 144A or in a broker transaction pursuant to Rule 144 (provided that, in relation to any such Rule 144A offering or such Rule 144 offering, such Person has not instructed or encouraged any initial purchaser, broker or broker dealer as applicable, to sell such Notes or New Notes 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 (D) in a derivatives transaction entered into with, or purchased from, a bank, broker-dealer or other recognized derivatives dealer that is not a hedge fund or activist investor, or to the knowledge of such Person, an Affiliate of a hedge fund or activist investor;
(v) 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 take-over bid, amalgamationtender or exchange offer, merger, consolidation, acquisition, scheme of arrangement, business combination, re-organizationrecapitalization, restructuring reorganization, sale or liquidation with respect to acquisition of all or substantially all assets, liquidation, dissolution or other extraordinary transaction involving the Corporation Company or any of its subsidiaries Subsidiaries or disposition joint ventures or any of more than a majority 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 Person or its Investor Affiliate of any securities of the assets Company into any Third Party Tender/Exchange Offer (and any related conversion of Notes to the extent required to effect such tender) or any merger, consolidation or similar transaction entered into by the Company, or the vote by such Person or its Investor Affiliate of any voting securities of the CorporationCompany with respect to any Extraordinary Transaction;
(vi) (A) call or seek to call any meeting of stockholders of the Company, or including by written consent, (B) seek representation on the Board of Directors, except as expressly set forth herein, (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or 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 board 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 Person or its applicable Affiliates shall have an opportunity to publicly cure any such statement within two Business Days after being informed by the Company that such Person or its Affiliates have breached this clause (viii));
(ix) make any public disclosure, announcement or statement regarding any intent, purpose, plan or proposal with respect to the Board of Directors, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(x) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to any of the Corporation’s affiliates;
(vi) foregoing, or advise, assist assist, knowingly encourage or encourage seek to persuade any person (including forming a “group” Third Party to take any action or make any statement with any such person) proposing respect to any of the foregoing; or
(viixi) make request, directly or indirectly, any public announcement amendment, modification or take any action in furtherance waiver of the foregoing, this Section 4.06 (each, a “Hostile Action”including this clause (xi)).
(b) The foregoing provisions of Section 5.3 4.06(a) shall cease not be deemed to applyprohibit a Person or any of its Investor Affiliates or their respective directors, executive officers, partners, employees or managing members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors regarding the matters set forth in Section 4.06(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 4.06 to the Investors shall be permitted to take a Hostile Actioncontrary, from and after: if (i) the commencement or public announcement of Company enters into a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, whichtransaction that, if completedconsummated, would result in a Change in Control and (ii) the acquisition by Company had not, reasonably prior to entering into such definitive agreement, provided an Investor with a written notice inviting any person of its Investor Affiliates to make one or group more proposals or offers to effect a transaction that would result in Change in Control, then after the announcement of persons 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 4.06 will prevent such Investor Affiliates from (A) submitting to the Board of Directors one or more than 50% bona fide proposals or offers for an alternative transaction involving, directly or indirectly, one or more of such Investor Affiliates, (B) pursuing and entering into any such alternative transaction with the Company and (C) taking any actions in furtherance of the then outstanding voting securities foregoing, including actions relating to obtaining equity and/or debt financing for the alternative transaction as long as (x) any proposal or offer is conditioned on the proposed transaction being approved by the Board of Directors and (y) such Investor Affiliates do not make any public announcement or disclosure of such proposal, offer or actions other than any filings and disclosures that may be required in filings with the Corporation or more than a majority of the assets of the CorporationSEC.
Appears in 1 contract
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not)Each Purchaser agrees that, in any mannerfor a period of twelve months from the date of this Agreement, directly, indirectly or jointly or in concert with any other person, during the Restricted Periodneither it nor its Affiliates will, without the prior written consent of the BoardCompany, such consent being determined by a simple majority vote directly or indirectly: make any statement or proposal to the Board of Directors, any of the Board Company’s representatives, or any of the Company’s stockholders regarding, or make any public announcement, proposal, or offer (excluding including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the vote Exchange Act) with respect to, or otherwise solicit, seek or offer to effect (including, for the avoidance of any Investor Nominee):
doubt, indirectly by means of communication with the press or media): (i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamationbusiness combination, merger, arrangementtender offer, business combinationexchange offer, re-organization, restructuring or liquidation with respect to similar transaction involving the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the CorporationSubsidiaries, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation liquidation, or similar transaction involving the Corporation Company or any of its affiliates or any part of their respective assets or businesses;
Subsidiaries, (iii) engage in short sales any acquisition of any of the Equity Securities held by Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Investor;
Company’s loans, debt securities, equity securities, or assets, (iv) solicit proxies from shareholders any proposal to seek representation on the Board of Directors or formotherwise seek to control or influence the management, join Board of Directors or participate in a group to so solicit, other than any solicitation of proxies voting in favour policies of the nominees of management of the Corporation for election to the Board;
Company or (v) present any proposal, arrangement, or request other statement that is inconsistent with the terms of this Agreement, including this Section 4.4; instigate, encourage or assist any third party (including forming, joining or participating in a “group” as defined in the Exchange Act and the rules promulgated thereunder) to present at do, or enter into any meeting discussions or agreements with any third party with respect to, any of the securityholders of actions set forth in clause (a) above; take any action that would reasonably be expected to require the Corporation Company or any of its affiliates or through action by written consent Affiliates to make a public announcement regarding any proposal for consideration for action by securityholders, requisition a meeting of the securityholders actions set forth in clause (a) above; other than the Shares, 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 Corporation Company or any of its affiliatesSubsidiaries, propose or request rights or options to propose any nominee for election to the Board or the board of directors of acquire interests in any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) loans, debt securities, equity securities or seek the removal of any member assets of the Board Company or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist its Subsidiaries; or encourage any person (including forming a “group” enter into discussions or arrangements with any such person) proposing Person with respect to any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Standstill. (a) The Investors During the Standstill Period, each ▇▇▇▇▇▇ Party shall not (not, and they shall cause its Representatives (solely in the context of their respective affiliates to not)representation of such ▇▇▇▇▇▇ Party in connection with the subject matter of this Agreement) not to, in any manner, directly, indirectly directly or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):indirectly:
(i) make any announcement or proposal with respect to, or offer, seek or propose, (A) commence any form of business combination or acquisition or other transaction relating to a take-over bid for any material amount of assets or securities of the Corporation; Company or any of its subsidiaries, (B) effectany form of restructuring, seek, offer recapitalization or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation similar transaction with respect to the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any form of tender or exchange offer for shares of Common Shares Stock or Convertible other Voting Securities, except in connection with the acquisition whether or not such transaction involves a Change of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate Control (as defined below) of the InvestorCompany; it being understood that the foregoing shall not prohibit the ▇▇▇▇▇▇ Parties or their Affiliates or Associates from (i) acquiring Voting Securities within the limitations set forth in Section 6(a)(iii), where the (ii) selling or tendering their shares of Common Shares of Convertible Securities held by Stock, and otherwise receiving consideration, pursuant to any such person do not comprise a material portion of the assets of transaction or (iii) voting on any such persontransaction in accordance with Section 3;
(ii) enter into engage in, or proposeassist in the engagement in, any solicitation of proxies or written consents to vote any Voting Securities, or conduct, or assist in the conducting of, any type of binding or nonbinding referendum with respect to any Voting Securities, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to, or from the holders of, any Voting Securities, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a‑1 of Regulation 14A, respectively, under the Securities Exchange Act of 1934, as amended, and with the rules and regulations thereunder (the “Exchange Act”), to vote any securities of the Company (including by initiating, encouraging or participating in any “withhold” or similar campaign), in each case other than in a manner that is consistent with the Board’s recommendation on a matter;
(iii) purchase or otherwise acquire, or offer, seek, propose or agree to acquire, ownership (including beneficial ownership) of any securities of the Company, any direct or indirect rights or options to acquire any such securities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock, or any assets or liabilities of the Company such that the ▇▇▇▇▇▇ Parties would beneficially own in excess of 9.9% of the then-outstanding shares of Common Stock;
(iv) advise or knowingly encourage or influence any person with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company;
(v) other than in open market sale transactions where the identity of the purchaser is not known, sell, offer or agree to enter into sell directly or engage in indirectly, through swap or hedging transactions or otherwise, the securities of the Company or any negotiations with respect rights decoupled from the underlying securities held by any of the ▇▇▇▇▇▇ Parties to any:
any person not (A) acquisitiona party to this Agreement, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuringa member of the Board, recapitalization(C) an officer of the Company, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iiiD) engage in short sales an Affiliate of any of the Equity Securities held by the Investor;
Party (iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly person not set forth in this Agreementclauses (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 seek otherwise having any beneficial or other ownership interest representing in the removal aggregate in excess of any member 4.9% of the Board shares of Common Stock outstanding at such time, except for Schedule 13G filers that are mutual funds, pension funds, index funds or the board investment fund managers with no known history of directors of any of the Corporation’s affiliatesactivism or known plans to engage in activism;
(vi) advisetake any action in support of or make any proposal or request that constitutes or would result in: (A) advising, assist controlling, changing 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 Certificate 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 with respect to the foregoing clauses (A) through (F), except as set forth in Section 1;
(vii) communicate with stockholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act (other than in connection with an Extraordinary Transaction);
(viii) call or seek to call, 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”;
(ix) deposit any shares of Common Stock or other Voting Securities in any voting trust or subject any shares of Common Stock or other Voting Securities to any arrangement or agreement with respect to the voting of any shares of Common Stock or Voting Securities (other than (A) any such voting trust, arrangement or agreement solely among the ▇▇▇▇▇▇ Parties that is otherwise in accordance with this Agreement or (B) customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(x) seek, or knowingly encourage or advise any person person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, or knowingly encourage or take any other action with respect to the election or removal of any directors, except as set forth in Section 1;
(including forming a xi) 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 (other than a group that includes all or some of the ▇▇▇▇▇▇ Parties); provided, however, that nothing herein shall limit the ability of an Affiliate of a ▇▇▇▇▇▇ Party to join the “group” 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;
(xii) demand a copy of the Company’s list of stockholders or its other books and records or make any request pursuant to Rule 14a-7 under the Exchange Act or under any statutory or regulatory provisions of Delaware providing for stockholder access to books and records (including lists of stockholders) of the Company;
(xiii) make any request or submit any proposal to amend or waive the terms of this Section 6 other than through non-public communications with the Company that would not be reasonably likely to trigger public disclosure obligations for any Party; or
(xiv) enter into any discussions, negotiations, agreements or understandings with any person with respect to any action the ▇▇▇▇▇▇ Parties are prohibited from taking pursuant to this Section 6, or advise, assist, knowingly encourage or seek to persuade any person to take any action or make any statement with respect to any such person) proposing action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
. Notwithstanding anything to the contrary contained in this Section 6 or elsewhere in this Agreement, the ▇▇▇▇▇▇ Parties shall not be prohibited or restricted from: (viiA) make communicating privately with the Board or any 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 announcement or take disclosure of such communications; (B) taking any action in furtherance 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 ▇▇▇▇▇▇ Party, provided that a breach by the ▇▇▇▇▇▇ Parties of this Agreement is not the cause of the foregoing, applicable requirement; or (each, C) communicating with stockholders of the Company and others in a “Hostile Action”)manner that does not otherwise violate this Agreement.
(b) The provisions of this Section 5.3 6 shall cease not limit in any respect the actions of any director of the Company in his or her capacity as such, recognizing that such actions are subject to apply, such director’s fiduciary duties to the Company and its stockholders and the Investors Company Policies (it being understood and agreed that neither the ▇▇▇▇▇▇ Parties nor any Affiliate of the ▇▇▇▇▇▇ Parties shall seek to do indirectly through the New Director or the Potential Director, if applicable, anything that would be permitted prohibited if done by any of the ▇▇▇▇▇▇ Parties or any Affiliate of the ▇▇▇▇▇▇ Parties). The provisions of this Section 6 shall also not prevent the ▇▇▇▇▇▇ Parties from freely voting their shares of Common Stock (except as otherwise provided in Section 3 hereto).
(c) Nothing in this Agreement shall limit in any respect the actions or rights of any director of the Company (including, for the avoidance of doubt, the New Director and, if applicable, the Potential Director) under applicable law in his or her capacity as such. Without limitation to take a Hostile Actionthe foregoing, from and after: the New Director and, if applicable, the Potential Director shall have the exact same (i) the commencement or public announcement access to members of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or management as every other director and (ii) rights as every other director to access the approval or entering into by the Corporation of, or the public announcement books and records of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result Company and to make information requests of management in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationorder to facilitate these rights.
Appears in 1 contract
Standstill. Unless approved in advance in writing by the Board of Directors of the Buyer, during the period from the date of this Agreement through October 19, 2017 or the earlier termination of this Agreement pursuant to Article XI hereof, the Seller shall not take or permit any other Person on its behalf to take any action directly or indirectly to:
(a) The Investors shall not make any statement or proposal to the Board of Directors of the Buyer, and of the Buyer’s Representatives or any of the Buyer’s shareholders regarding, or make any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and they shall cause their respective affiliates the OBCA with respect to, or otherwise solicit, seek or offer to not)effect (including, in any manner, directlyfor the avoidance of doubt, indirectly by means of communication with the press or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
media): (i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over offer, takeover bid, exchange offer or other business combination transaction relating to similar transaction, involving the Corporation Buyer or any of its affiliates or any part of their respective assets or businesses; or
Subsidiaries, (Bii) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation Buyer or any of its affiliates or any part of their respective assets or businesses;
Subsidiaries, (iii) engage in short sales any acquisition of any of the Equity Securities held Buyer’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Buyer’s loans, debt securities, equity securities or assets (other than as specifically contemplated by this Agreement and the InvestorOther Agreements), (iv) any proposal to seek representation on the Board of Directors of the Buyer or otherwise seek to control or influence the management, Board of Directors or policies of the Buyer (other than as specifically contemplated by this Agreement and the Other Agreements), (v) any request or proposal to waive, terminate or amend the provisions of this Section 5.9 or (vi) any proposal, arrangement or other statement that is inconsistent with this Section 5.9;
(ivb) solicit proxies from shareholders instigate, encourage or form, join or participate in a group to so solicit, other than assist any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person third party (including forming a “group” with any such personthird party) proposing to do, or enter into any discussion or agreement with any third party with respect to, any of the foregoingactions set forth in paragraph (a) above;
(c) take any action which would reasonably be expected to require the Buyer or any of its affiliates to make a public announcement regarding any of the actions set forth in paragraph (a); or
(viid) make acquire (or propose to acquire), of record or beneficially, by purchase or otherwise, any public announcement loans, debt securities, equity securities or take any action in furtherance assets of the foregoingBuyer or any of its subsidiaries, (eachor rights or options to acquire interests in any of the Buyer’s loans, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to applydebt securities, and the Investors shall be permitted to take a Hostile Actionequity securities or assets, from and after: other than as contemplated hereby; provided, however, that (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50Seller may own up to 5% of the then outstanding voting securities each class of the Corporation by any person or group of persons; or Buyer’s outstanding loans, debt securities and/or equity securities and (ii) the approval or entering into Seller may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the CorporationBuyer.
Appears in 1 contract
Standstill. (a) The Investors From the date of this Agreement until the expiration of the Standstill Period (as defined below), each Investor shall not (not, and they shall cause their respective affiliates Affiliates, principals, directors, general partners, officers, employees and, to notthe extent acting on their behalf, agents and representatives (collectively, the “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 business combination or acquisition or other transaction relating to 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, (C) any form of tender or exchange offer for the Common Stock, or (D) any other form of Extraordinary Transaction, whether or not any transaction referred to in (A), (B), (C) or (D) involves a Change of Control of the Company (it being understood that the foregoing shall not prohibit Investors or their Affiliates from acquiring Common Stock 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 mannersolicitation of proxies (or written consents) with respect to any voting securities of the Company, directlyor otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, indirectly respectively, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to vote (or jointly withhold the vote of) any securities of the Company;
(iii) purchase or otherwise acquire, or offer, seek, propose, or agree to acquire, ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any securities of the Company, any direct or indirect rights or options to acquire any such securities, any derivative securities or contracts or instruments in any way related to the price of shares of Common Stock of the Company, or any assets or liabilities of the Company; provided that the Investor Group, in the aggregate, may acquire beneficial ownership of up to 4.9% of the outstanding shares of Common Stock in compliance with the Tax Benefits Plan, so long as it is in effect, and thereafter, the Investor Group, in the aggregate, may acquire beneficial ownership of up to 9.9% of the outstanding shares of Common Stock;
(iv) seek to advise, encourage, or influence any person with respect to the voting of (or the giving or withholding of a proxy or written consent in respect of), acquisition of or disposition of any securities of the 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 (calculated in compliance with the Tax Benefits Plan, so long as it is in effect);
(vi) take any action in support of or 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 Restated Certificate of Incorporation of the Company (as may be amended from time to time, the “Certificate of Incorporation”) or the Amended and Restated Bylaws of the Company (as may be amended from time to time, 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;
(vii) communicate with stockholders of the Company 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 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 call, or request the call of, alone or in concert with others, any other personmeeting of stockholders, during whether or not such a meeting is permitted by the Restricted PeriodCertificate of Incorporation or Bylaws, without the prior including a “town hall meeting”;
(x) grant any proxy, consent or authority to vote any Common Stock of the Board, such consent being determined by a simple majority vote of Company with respect to any matters (other than to the Board (excluding named proxies included in the vote of any Investor Nominee):
(i) (A) commence a take-over bid Company’s proxy card for any securities annual meeting or special meeting of the Corporation; (Bstockholders) effect, seek, offer or propose deposit any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring Common Stock in any voting trust or liquidation subject any Common Stock to any arrangement or agreement with respect to the Corporation voting of any Common Stock (other than any such voting trust, arrangement or agreement solely among the Investors or any Affiliates thereof that is otherwise in accordance with this Agreement);
(xi) act, seek, facilitate or encourage any person to submit nominations or proposals, whether in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of directors or otherwise with respect to the Company or seek, facilitate, encourage, or take any other action with respect to the appointment, election or removal of 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 in this Agreement shall limit the ability of an Affiliate of the Investor Group to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound in writing by the terms and conditions of this Agreement and, if required under the Exchange Act, an Investor files a Schedule 13D within two business days disclosing that such Investor has formed a group with such Affiliate (it being understood that such Schedule 13D and the contents thereof may not violate any of the restrictions set forth in this Agreement);
(xiii) demand a copy of the Company’s list of stockholders or its other books and records or make any request under any law of the State of Delaware, whether statutory or regulatory;
(xiv) commence, encourage or support (A) any derivative action in the name of the Company or any class action against the Company or any of its subsidiaries officers or disposition directors, in each case with the intent of more than a majority circumventing the provisions of this Agreement), or (B) any other litigation based on facts arising on or before the date hereof, or take any action challenging the validity or enforceability of any of the assets provisions of this Agreement; provided, however, that the Corporationforegoing shall not prevent any Investor from (A) bringing litigation against the Company to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against an Investor, or (C) purchase responding to or complying with a validly issued legal process that neither the Investor Group nor any Common Shares of their Affiliates initiated, encouraged or Convertible Securities, except in connection facilitated;
(xv) make any request or submit any proposal to amend or waive the terms of this Section 3 or Section 6 other than through non-public communications with the acquisition of a person Company that holds Common Shares would not be reasonably expected to result in or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in involve public disclosure obligations for any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businessesParty; or
(Bxvi) enter into any restructuringdiscussions, recapitalizationnegotiations, liquidation agreements or similar transaction involving understandings with any person or entity with respect to any action the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies Investors are prohibited from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than taking pursuant to the nomination rights expressly set forth in this Agreement) Section 3 or Section 6, or advise, assist, knowingly encourage or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage to persuade any person (including forming a “group” or entity to take any action or make any statement with respect to any such person) proposing action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of . Notwithstanding the foregoing, nothing in this Section 3 or elsewhere in this Agreement shall prohibit or restrict the Investor Group from: (eachA) communicating privately with the Board or any executive officer or (to the extent consistent with the Governance Principles of the Company) 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 or otherwise violate this Section 3 or Section 6; (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 the Investor Group or any of their respective Affiliates or Associates, provided that a “Hostile Action”)breach by the Investor Group of this Agreement is not the cause of the applicable requirement and provided, that such Investor, to the extent legally permissible, must provide written notice to the Company of at least two (2) business days prior to taking any such action that would otherwise be prohibited under this Agreement, and reasonably consider any comments of the Company regarding such proposed action; (C) privately communicating to any of their potential investors or investors publicly available factual information regarding the Company consistent with prior practice in Legion’s annual and quarterly investor letters, provided that such communications are not reasonably expected to be publicly disclosed and are understood by all parties to be private communications and do not otherwise violate this Section 3 or Section 6; and (D) privately communicating to any stockholders of the Company, provided that such communications are not reasonably expected to be publicly disclosed and are understood by all parties to be private communications and do not otherwise violate this Section 3 or Section 6.
(b) The provisions of this Section 5.3 3 shall cease not limit in any respect the actions of any director of the Company in his or her capacity as such, recognizing that such actions are subject to apply, such director’s fiduciary duties to the Company and its stockholders (it being understood and agreed that neither the Investors nor any of their Affiliates shall seek to do indirectly through any director or other party anything that would be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which prohibited if completed would result in the acquisition of more than 50% done by any of the then outstanding voting securities of Investors or their Affiliates).
(c) Notwithstanding anything set forth herein to the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation ofcontrary, or upon the public announcement of the approval or entering into by the Corporation of, Company of entry into a definitive agreement for a transaction that would constitute a Change of Control, this Agreement shall immediately and automatically terminate in its entirety and no party hereunder shall have any further rights or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group obligations under this Agreement.
(d) For purposes of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.this Agreement:
Appears in 1 contract
Standstill. Until the Trigger Date, each Stockholder and its Affiliates shall not directly or indirectly, including through any Affiliate, or through any other Persons who are part of a “group” (as defined in Section 13(d) of the Exchange Act) with such Stockholder:
(a) The Investors shall not acquire, agree to acquire, or make any public announcement of any proposal or offer to acquire any Common Stock or other voting securities of the Corporation (and they shall cause their respective affiliates to notother than as a result of an issuance of Common Stock in connection with any stock split, pro rata stock dividend, subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise), combination (by reverse equity split, reclassification, recapitalization or otherwise), or other similar transaction that generally affects or is made available to all stockholders of the Corporation or any transfer between or among such Stockholder and/or its Affiliates);
(b) other than in any manner, directly, indirectly or jointly or in concert connection with any other person, during the Restricted Period, without the prior consent of matter recommended by the Board, such consent being determined by a simple majority vote of the Board (excluding the vote enter, agree to enter or make any public announcement of any Investor Nominee):
(i) (A) commence a take-over bid for proposal or offer to enter into any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organizationrecapitalization, restructuring restructuring, tender offer, change in control transaction or liquidation with respect to other similar extraordinary transaction involving the Corporation or any of its subsidiaries or disposition an acquisition of more than a majority of the any assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personCorporation and its subsidiaries;
(iic) enter into make, engage in, or propose, offer or agree to enter into or engage in any negotiations way, directly or indirectly, participate in any “solicitation” of “proxies” (as such terms are used in the rules of the SEC, but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) of the Exchange Act) to vote, or seek to influence any other Person with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more any securities convertible or exchangeable into or exercisable for any such securities, in each case in favor of the election of any Person as a director who is not nominated pursuant to this Agreement or by the Board (or its nominating committee).
(d) take any action (other than a majority non-public proposal or request to the Board or its nominating committee) in support of or make any proposal or request that constitutes: (A) advising, controlling, engaging or influencing the assets Board with respect to any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any other material change with respect to the governance of the Corporation, (C) seeking to have the Corporation waive provisions in or make amendments or modifications to the Corporation’s certification of incorporation or bylaws, or (D) a change to the composition of the Board;
(e) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act), except with respect to any group consisting of solely such Stockholder, its Affiliates, and solely parties who do not intend (i) to pursue any action that would, if taken by such Stockholder, violate this Agreement, (ii) to call, or seek to call, a meeting of the stockholders of the Corporation or initiate any stockholder proposal for action by stockholders of the Corporation with respect to a matter described in Section 3(b), (c) or (d) or (iii) take any action that would reasonably be expected to require the Corporation to make a public announcement regarding a matter described in Section 3(b), (c) or (d); or
(f) enter into any negotiations, agreements or understandings with any third party with respect to a matter described in Section 3(b), (c) or (d), or knowingly encourage, seek to persuade, or knowingly assist any third party to take any action or make any public statement with respect to a matter described in Section 3(b), (c) or (d) or direct or knowingly assist any Person to do any of the foregoing or make any public statement inconsistent with any provision of Section 3(b), (c) or (d).
(g) Notwithstanding the foregoing provisions, this Section 3 shall not prohibit such Stockholder or its Affiliates from (i) privately communicating with members of the Board, including making any non-public offer or proposal to the Board; (ii) voting its Shares on any matter in accordance with this Agreement; (iii) exercising any rights as a stockholder existing under Delaware law or pursuant to the Corporation’s Certificate of Incorporation or bylaws or (iv) selling or transferring any Shares.
Appears in 1 contract
Standstill. Until the first to occur of: (i) the Goldcorp Right ceasing to be in effect; (ii) June 8, 2015; or (iii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ceasing to be the Chief Executive Officer of Tahoe:
a) The Investors shall provided that Tahoe has allowed Goldcorp to designate the proper number of the Goldcorp Director Nominees in accordance with Section 7 hereof, Goldcorp agrees that it will not (and they shall cause their respective affiliates to not)vote any of its Tahoe Shares at meetings of Shareholders in favour of any nominee directors who are not nominated by the Board of Directors; and
b) neither Goldcorp nor any of its Affiliates will, in any mannerwithout the prior written authorization of the Board of Directors, directly, indirectly indirectly, or jointly or in concert with any other personPerson unless otherwise expressly permitted by this Agreement, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or proposepurchase, offer or agree to enter into purchase or engage negotiate to purchase any Equity Securities; (ii) solicit or join in or in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer way directly or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or indirectly participate in a group to so solicit, other than any solicitation of proxies voting in favour from the Shareholders or otherwise attempt to influence the conduct of the nominees of management of the Corporation for election to the Board;
Shareholders, or (v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(viiii) advise, assist or encourage any person (including forming a “group” with Person to do, or take any such person) proposing action inconsistent with, any of the foregoing; or
, save and except (viiA) make any in the case of an unsolicited take-over bid being made by a third party for at least 50.1% of the Outstanding Equity Securities, (B) in the case of the public announcement by Tahoe that it is seeking an acquisition or take any action business combination in furtherance of which it would not be the foregoingsurviving entity as a publicly traded company, (eachC) following the date Tahoe enters into an agreement or letter of intent with a third party that provides for an acquisition of, or business combination with, Tahoe where it would not be the surviving entity as a “Hostile Action”).
publicly traded company, (bD) The provisions of Section 5.3 shall cease to apply, and following the Investors shall be permitted to take date a Hostile Action, from and after: (i) the commencement or public announcement of third party commences a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person tender or group of persons; or (ii) the approval or entering into by the Corporation ofexchange offer for, or the public announcement of the approval publicly announces or entering into by the Corporation ofdiscloses a proposal to acquire, a transaction all or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets Outstanding Equity Securities or (E) following the date a third party enters into an agreement or letter of intent to acquire, or acquires, beneficial ownership of at least 50.1% of the CorporationOutstanding Equity Securities. THIRD AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT TAHOE RESOURCES INC.
Appears in 1 contract
Standstill. From the date of this Agreement through the six (a6) The Investors shall not month anniversary thereof (the “Standstill Termination Date”), neither Terex nor any of Terex’s “affiliates” (as such term is defined in the Securities Act of 11934, as amended, or the rules and they shall cause their respective affiliates to notregulations promulgated thereunder (collectively, the “1934 Act”)), will, in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Periodindirectly, without the prior consent of the Board, such consent being determined by a simple majority vote approval of the Board of Directors of Discloser (excluding the vote of any Investor Nominee):
which approval may by given or withheld in such Board’s sole discretion), (i) (A) commence a take-over bid for acquire, or make any offer or proposal to acquire, or assist any other person to acquire, any securities or property of the Corporation; Discloser, whether by tender offer, exchange offer or otherwise, (Bii) effect, seek, offer or propose to enter into any take-over bid, amalgamation, merger, arrangement, merger or business combination, re-organization, restructuring combination involving Discloser or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
Discloser or any subsidiary of Discloser, (iiiii) enter into make or propose, offer or agree to enter into or engage participate in any negotiations “solicitation” of “proxies” ( as such terms are defined in the 1▇▇▇ ▇▇▇) to vote, or seek to advise or influence any person with respect to any:
the voting of any securities of Discloser, (Aiv) acquisitionform, amalgamationjoin or participate with others in a “group” (as defined in the 1▇▇▇ ▇▇▇) with respect to any voting securities of Discloser, plan (v) otherwise act, alone or in concert with others, or seek to control or influence the management, Board of arrangement, merger, tender offer Directors or take-over bid, exchange offer or other business combination transaction relating to the Corporation policies of Discloser; (vi) take any action which might force Discloser or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of to make a public announcement regarding any of the Equity Securities held by the Investor;
types of matters set forth in clauses (ivi) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
through (v) present of this Paragraph 11; or request (vii) enter into any discussions or arrangements with any third party with respect to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s foregoing. Terex also agrees, on behalf of itself and its affiliates and Representatives, during such period not to request Discloser (other than pursuant or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Paragraph 11 (including this sentence). After the nomination rights expressly Standstill Termination Date, the restrictions set forth in this AgreementParagraph 11 shall terminate and no longer be effective. Notwithstanding anything to the contrary contained in this P▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇’s obligations under this paragraph shall immediately terminate prior to the Standstill Termination Date if any party that is not an “affiliate” of Terex or Discloser (a) shall, in addition to any shares held by such party, have acquired or seek the removal of any member entered into a definitive agreement to acquire, or have Discloser issue, more than 35% of the Board outstanding equity securities of Discloser or the board of directors of any all or substantially all of the Corporation’s affiliates;
(vi) adviseassets of Discloser, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take commences a Hostile Action, from and after: (i) the commencement tender offer or public announcement of a take-over bid, which if completed would result in the acquisition of exchange offer for more than 50% of the then outstanding voting equity securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the CorporationDiscloser.
Appears in 1 contract
Standstill. (a) The Investors shall not (For a period commencing with the date hereof and they shall cause their respective affiliates to not)[****], in neither Q nor any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Periodof its agents shall, without the prior written consent of E or its board of Directors: acquire, offer to 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 E or any subsidiary thereof, or of any successor to or person in control of E, or any assets of E or any subsidiary or division thereof or of any such successor or controlling person; make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the Board, such consent being determined by a simple majority vote rules of the Board Securities and Exchange Commission (excluding the vote of “SEC”)), or seek to advise or influence any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer person or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation entity with respect to the Corporation voting of any voting securities of E; make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving E or any of its subsidiaries securities or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businessesassets; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or in any way participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” as defined in Section 13(d)(3) of the Exchange Act, in connection with any such person) proposing any of the foregoing; or
(vii) make any public announcement otherwise act or seek to control or influence the management, Board of Directors or policies of E; take any action in furtherance that could reasonably be expected to require E to make a public announcement regarding the possibility of any of the foregoingevents described in this Section 8.9; or request E or any of its agents, (eachdirectly or indirectly, a “Hostile Action”)to amend or waive any provision of this Section 8.9.
(b) The provisions of restrictions in this Section 5.3 8.9 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: mutatis mutandis,
(i) the commencement or public announcement of a take-over bid, which if completed would result to E and its agents regarding any transactions in the acquisition of more than 50% of the then outstanding any voting securities of the Corporation by any person Q and / or group of persons; or REC, and
(ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result to Q and its agents regarding any transactions in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation REC.
(iii) to REC and its agents regarding any transactions in any voting securities of E and / or more than a majority of the assets of the Corporation.Q.
Appears in 1 contract
Sources: Master Joint Venture Agreement (Evergreen Solar Inc)
Standstill. (a) The Investors Except as contemplated by the Offer, until the one-year anniversary of the Closing (being the later of the First Closing and Second Closing in the event Section 2.02(c) is applicable), the Investor shall not, and shall not permit any of its Representatives (and they shall cause their respective affiliates acting at the Investor’s direction) or Affiliates to not)(either individually, in any manner, directly, indirectly or jointly or in concert with any other personPerson, during the Restricted Period, without the prior consent or as a “group” (as such term is used in Section 13(d)(3) of the BoardExchange Act)), such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):directly or indirectly:
(i) make or in any way participate or engage in any “solicitation” of “proxies” or consents (A) commence a take-over bid for whether or not relating to the election or removal of directors), as such terms are used in the rules of the SEC, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Corporation; Company or any of its Subsidiaries, or call or seek to call a meeting of the Company’s stockholders (Bor action by written consent in lieu thereof) or initiate or make any stockholder proposal for action by the Company’s stockholders, or seek election to or to place a representative on the Company Board or seek the removal of any director from the Company Board;
(ii) make any public announcement with respect to, or offer, seek, propose or indicate an interest in (in each case with or without conditions), any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization or purchase of all or substantially all of the assets of the Company or its Subsidiaries, or any other extraordinary transaction involving the Company or any Subsidiary of the Company or any of their respective securities or assets, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(iii) effect or seek to effect (including by entering into discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist or facilitate (including through the provision of financing) any other Person to effect or seek, offer or propose any take-over bid, amalgamation, (whether public or otherwise) to effect or participate in a merger, arrangementconsolidation, business combinationdivision, re-organization, restructuring acquisition or liquidation with respect to the Corporation exchange of any Company Securities or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets thereof, change of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuringcontrol transaction, recapitalization, restructuring, liquidation or similar transaction involving the Corporation Company or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the InvestorSubsidiaries;
(iv) solicit proxies from shareholders otherwise act, alone or formin concert with others, join to seek to control or participate influence, in a group to so solicitany manner, other than management or the Company Board, the Company or any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Boardits Subsidiaries;
(v) present make any public proposal or request to present at public statement of inquiry or publicly disclose any meeting of the securityholders of the Corporation intention, plan or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of arrangement inconsistent with any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliatesforegoing;
(vi) advisetake any action that would reasonably be expected to require the Company to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 6.07(a);
(vii) enter into any discussions, assist negotiations, arrangements or encourage understandings with any person third party (including forming security holders of the Company, but excluding, for the avoidance of doubt, any Investor Group Members) with respect to any of the foregoing, including forming, joining or in any way participating in a “group” (as such term is used in Section 13(d)(3) of the Exchange Act) with any such person) proposing third party with respect to any securities of the Company or its Subsidiaries or otherwise in connection with any of the foregoing;
(viii) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this Section 6.07(a), provided that this clause shall not prohibit the Investor from making a confidential request to the Company seeking an amendment or waiver of the provisions of this Section 6.07(a), which the Company may accept or reject in its sole discretion, so long as any such request is made in a manner that does not require public disclosure thereof by any Person;
(ix) contest the validity of this Section 6.07(a) or make, initiate, take or participate in any demand, action (legal or otherwise) or proposal to amend, waive or terminate any provision of this Section 6.07(a);
(x) deposit any Company Securities owned thereby (whether beneficial ownership or record ownership) in any voting trust or subject any such Company Securities to any arrangement or agreement (other than customary brokerage accounts, margin accounts, prime brokerage accounts and the like) with respect to the voting of any such Company Securities, other than any such voting trust, arrangement or agreement solely among the Investor Group and their respective Affiliates and granting proxies in solicitations approved by the Company Board;
(xi) make any request for stockholder lists or other books and records of the Company or any of its Subsidiaries under any statutory or regulatory provisions providing for shareholder access to books and records of the Company or its Subsidiaries; or
(viixii) make advise, assist, knowingly encourage or direct any public announcement Person to do, or take to advise, assist, encourage or direct any action in furtherance other person to do, any of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Transaction Agreement (Rumble Inc.)
Standstill. During the period (such period, the “Standstill Term”) commencing as of the date of this Agreement and continuing until the date that is the six (6)-month anniversary of the Conversion Date of the final tranche of Purchased Shares sold to each Investor under the applicable Purchase Agreement, no Investor nor any of its Affiliates shall do any of the following, either directly or indirectly by causing, requesting or directing its Affiliates to do any of the following, except as expressly approved or invited in writing by the Company:
(a) The Investors shall not (and they shall cause their respective affiliates other than purchases of additional Purchased Shares as contemplated under the applicable Purchase Agreement, the issuance of Conversion Shares or pursuant to not), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without the prior consent exercise of the BoardParticipation Right, directly or indirectly, acquire beneficial ownership of Common Stock and/or Common Stock Equivalents and/or any instrument that gives such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition Affiliates the economic equivalent of more than a majority ownership of an amount of securities of the assets of the CorporationCompany (a “Derivative”), except, nothing in this Section 3.1(a)shall prevent or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the prohibit such Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
Affiliates from (Bi) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation investing in a fund with respect to which such Investor or any of its affiliates Affiliates does not have or share decision-making authority over investment or divestment decisions; (ii) in the case of an Affiliate that is a private equity fund or a credit fund, investing through a portfolio company of such fund; or (iii) entering into any part Derivative with an Investor or its Affiliates or receiving a transfer of their respective assets any Purchased Shares or businessesConversion Shares from an Investor or its Affiliates.
(b) make a tender, exchange or other public offer to acquire Common Stock and/or Common Stock Equivalents;
(iiic) engage in short sales of directly or indirectly, (i) seek to have called any meeting of the Equity Securities held stockholders of the Company or propose any matter to be voted upon by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour stockholders of the nominees of management of the Corporation Company, or (ii) propose or nominate for election to the Board any person whose nomination has not been approved by a majority of the Board;
(vd) present directly or request to present at indirectly, encourage, accept or support a tender, exchange or other offer or proposal by any meeting other Person or group (an “Offeror”) for securities of the securityholders Company (if such offer or proposal would, if consummated, result in a Change of Control of the Corporation Company, such offer or proposal is referred to as an “Acquisition Proposal”); provided, however, that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company recommending that stockholders accept any such offer filed after such offer has commenced, such Investor shall not be prohibited from taking any of the actions otherwise prohibited by this Section 3.1(d) for so long as the Board maintains and does not withdraw such recommendation;
(e) directly or indirectly, solicit proxies or consents or propose or seek or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), or seek to advise or influence any Person, with respect to voting of any securities of the Company;
(f) deposit any securities of the Company in a voting trust or subject any securities of the Company to any arrangement or agreement with respect to the voting of such securities, including the granting of any proxy;
(g) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, purchase of any securities of the Company or any of its affiliates Derivative, or through action by any similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company, in each case without the prior written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders Board (a transaction described in clauses (i) and (ii) that would result in a Change of Control, is referred to as a “Business Combination”);
(h) act in concert with any Third Party to take any action in clauses (a) through (g) above, or, directly or indirectly, form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” as such terms are used in the rules of the Corporation SEC with respect to the Company or any securities of its affiliates, the Company;
(i) request or propose or request to propose any nominee for election to the Board or the board Company (or any of directors its officers, directors, Affiliates, employees, attorneys, accountants, financial advisors and other professional representatives), directly or indirectly, any amendment or waiver of any provision of the Corporation’s affiliates this Section 3.1 (other than pursuant to the nomination rights expressly set forth in including this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliatesclause (i));
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(viij) make any public announcement regarding, or take any action in furtherance that could require the Company to make a public announcement regarding, a potential Business Combination or any of the foregoing, matters set forth in clauses (each, a “Hostile Action”).
(ba) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: through (i) above; or
(k) enter into discussions, negotiations, arrangements or agreements with any Person relating to the commencement foregoing actions referred to in (a) through (i) above; provided, however, that nothing contained in this Section 3.1 shall prohibit such Investor or public announcement any of its Affiliates from making confidential, nonpublic proposals to the Board for a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or transaction involving a Business Combination following the public announcement of the approval or entering into by the Corporation of, Company that it has entered into a definitive agreement with a Third Party for a transaction or definitive agreement providing for involving a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the CorporationBusiness Combination.
Appears in 1 contract
Standstill. The Shareholder hereby agrees that, from the date hereof until the Shareholder Termination Date and for one (a1) The Investors year thereafter, unless specifically requested in writing in advance by the Company, the Shareholder shall not (and they shall cause their respective affiliates to notnot assist, advise, act in concert or participate with or encourage others to), directly or indirectly (including through any corporation or other entity owned or controlled by the Shareholder): (a) acquire (or agree, offer, seek or propose to acquire, in each case publicly or privately) by purchase, tender offer, exchange offer, agreement or business combination or in any other manner, directlyany ownership, indirectly including but not limited to beneficial ownership, as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any material assets or jointly or in concert with any other person, during the Restricted Period, without the prior consent businesses of the Board, such consent being determined by a simple majority vote Company or any of its Affiliates or of Shares equal to over 5% of the Board outstanding voting power in the Company, or any rights or options to acquire such ownership (excluding the vote of including from any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporationthird party); (Bb) effectpublicly or privately offer to enter into, seekor publicly or privately propose, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organizationrecapitalization, restructuring or liquidation other extraordinary transaction with respect to the Corporation Company or any of its subsidiaries Affiliates; (c) initiate any shareholder proposal or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition convening of a person that holds Common Shares shareholders’ meeting of or Convertible Securities by involving the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation Company or any of its affiliates Affiliates; (d) solicit proxies (as such terms are defined in Rule 14a-1 under the Exchange Act), whether or not such solicitation is exempt pursuant to Rule 14a-2 under the Exchange Act, with respect to any part matter from, or otherwise seek to influence, advise or direct the vote of, holders of their respective assets any Shares, or businessesmake any communication exempted from the definition of solicitation by Rule 14a-1(l)(2)(iv) under the Exchange Act; or
(Be) any restructuringotherwise seek or propose to influence, recapitalizationadvise, liquidation change or similar transaction involving control the Corporation management, board of directors, governing instruments, affairs or policies of the Company or any of its affiliates Affiliates (other than in his role as President of Big Fish Games, Inc.); (f) enter into any discussions, negotiations, agreements, arrangements or understandings with any part of their respective assets or businesses;
other person with respect to any matter described in the foregoing clauses (iiia) engage in short sales of any of the Equity Securities held by the Investor;
through (ive) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation “group” (within the meaning of proxies voting in favour Section 13(d)(3) of the nominees Exchange Act) to vote, acquire or dispose of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation Shares or any securities in the Company’s Affiliates; (g) request that the Company (or its board of its affiliates directors) amend, waive, grant any consent under or through otherwise not enforce any provision of this Section 2.2, or refer to any desire or intention, but for this Section 2.2, to do so; or (h) make any public disclosure, or take any action by written consent any proposal for consideration for action by securityholders, requisition a meeting of that could reasonably be expected to require the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board Shareholder or the board of directors of Company to make a public disclosure, with respect to any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly matters set forth in this Agreement. For purposes of this Section 2.2, the following will be deemed to be an acquisition of beneficial ownership of Shares or other securities: (1) establishing or seek increasing a call equivalent position, or liquidating or decreasing a put equivalent position, with respect to such Shares or other securities within the removal meaning of any member Section 16 of the Board Exchange Act; or (2) entering into any swap or other arrangement that results in the board of directors acquisition of any of the Corporation’s affiliates;
(vi) adviseeconomic consequences of ownership of such Shares or other securities, assist whether such transaction is to be settled by delivery of such Shares or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement other securities, in cash or take any action in furtherance of the foregoing, (each, a “Hostile Action”)otherwise.
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Standstill. (a) The Investors shall not (For the duration of the Standstill Period, each Investor agrees that unless specifically requested in writing in advance by the Board acting upon a majority vote of the directors other than the Investor Director(s), it will not, and they shall will cause their respective affiliates its Affiliates to not, directly or indirectly (including through any of its or its Affiliates’ respective Representatives acting on its or its Affiliates’ behalf), in any manner, directly, indirectly or jointly acting alone or in concert with others (or at any other person, time during the Restricted PeriodStandstill Period assist, without the prior consent of the Boardadvise, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nomineeparticipate or encourage others to):
(ia) acquire (Aor agree, offer, seek or propose to acquire, in each case, publicly or privately), by purchase, tender offer, exchange offer, agreement or business combination or in any other manner, any ownership, including beneficial ownership (as defined in Rule 13d-3 under the Exchange Act, subject to the last sentence of this Section 5.3) commence a take-over bid for of any material assets or businesses or any securities of the CorporationCompany or any of its Subsidiaries, or any rights or options to acquire such ownership (including from any third party); provided that the foregoing shall not prevent any conversion into shares of Common Stock pursuant to the terms of the Private Placement Shares or any acquisition of securities pursuant to Section 5.8;
(Bb) effectpublicly or privately offer to enter into, seekor publicly or privately propose, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organizationrecapitalization, restructuring or liquidation other extraordinary transaction with respect to the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personSubsidiaries;
(iic) enter into initiate any shareholder proposal or propose, offer the convening of a shareholders’ meeting of or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to involving the Corporation Company or any of its affiliates Subsidiaries;
(d) solicit proxies (as such terms are defined in Rule 14a-1 under the Exchange Act), whether or not such solicitation is exempt pursuant to Rule 14a-2 under the Exchange Act, with respect to any matter from, or otherwise seek to influence, advise or direct the vote of, holders of any shares of capital stock of the Company or any part securities convertible into or exchangeable or exercisable for (in each case, whether currently or upon the occurrence of their respective assets any contingency) such capital stock, or businesses; ormake any communication exempted from the definition of solicitation by Rule 14a-1(l)(2)(iv) under the Exchange Act;
(Be) any restructuringotherwise seek or propose to influence, recapitalizationadvise, liquidation change or similar transaction involving control the Corporation management, board of directors, governing instruments, affairs or policies of the Company or any of its affiliates Subsidiaries thereof; provided, that this clause (e) shall not restrict the exercise by such Investor of any of its express rights under this Agreement or any part of their respective assets or businessesthe Transaction Documents;
(iiif) engage enter into any discussions, negotiations, agreements, arrangements or understandings with any other Person with respect to any matter described in short sales of any of the Equity Securities held by the Investor;
foregoing clauses (iva) solicit proxies from shareholders through (e) or form, join or participate in a group to so solicit, other than any solicitation “group” (within the meaning of proxies voting in favour Section 13(d)(3) of the nominees Exchange Act) to vote, acquire or dispose of management any securities of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation Company or any of its affiliates Subsidiaries;
(g) request that the Company (or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board Company’s Representatives) amend, waive, grant any consent under or otherwise not enforce any provision of directors this section, or refer to any desire or intention, but for this section, to do so; or
(h) make any public disclosure, or take any action that could reasonably be expected to require such Investor or its Affiliates (or its and their Representatives) or the Company to make a public disclosure, with respect to any of the matters set forth in this Agreement or the Transaction Documents. Notwithstanding anything in this Section 5.3 to the contrary (A) such Investor may make requests (but only privately to the Company and not publicly) for amendments, waivers, consents under or agreements not to enforce clause (a) or clause (b) of this Section 5.3 and may make proposals or offers (but only privately to the Company and not publicly) regarding the transactions contemplated by clause (a) or clause (b) of this Section 5.3, in each case, at any time after a Fundamental Change Event, (B) the Hayfin Investors and their respective Affiliates, may during the Standstill Period, purely for passive investment purposes, acquire additional Common Stock of the Company, so long as the aggregate amount of Common Stock beneficially owned by the Hayfin Investors and their Affiliates and any other person in a group (as such term is used in Section 13(d) of the Exchange Act) with any of the Hayfin Investors or their Affiliates in the aggregate would not exceed 4.9% of the total number of outstanding shares of Common Stock. For purposes of this Section 5.3, the following will be deemed to be an acquisition of beneficial ownership of securities: (1) establishing or increasing 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 Corporation’s affiliates (other than pursuant economic consequences of ownership of such securities, whether such transaction is to the nomination rights expressly set forth be settled by delivery of such securities, in this Agreement) cash or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”)otherwise.
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert Except with any other person, during the Restricted Period, without the prior consent of the BoardCompany, for so long as an Investor holds any Ordinary Shares, such consent being determined by a simple majority vote Investor (including, for the avoidance of the Board (excluding the vote doubt, any of any Investor Nominee):its Affiliates) shall not:
(i) acquire or enter into discussions to acquire, directly or indirectly, any shares of or interests in the Company (A) commence a take-over bid for including debt, equity, derivative, partnership or other interests in any securities of the Corporationform); (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;or
(ii) enter into or propose, offer or agree to enter into or engage provide financing (in any negotiations with respect form) for an acquisition by a third party of any shares of or interests in the Company (including debt, equity, partnership or derivative or other interests in any form); Notwithstanding anything to anythe contrary in this Agreement, for the avoidance of doubt, nothing in this Agreement shall limit or restrict the ability of any Person or Persons to:
(A) acquisitiondirectly or indirectly acquire securities of or interests in Yahoo! or SOFTBANK (including, amalgamationin each case, plan of arrangementdebt, mergerequity, tender offer partnership or take-over bid, exchange offer derivative or other business combination transaction relating to the Corporation interests in any form);
(B) provide financing (in any form) for a direct or indirect acquisition by any Person or Persons of its affiliates securities of or interests in Yahoo! or SOFTBANK (including, in each case, debt, equity, partnership or derivative or other interests in any part of their respective assets or businessesform); or
(BC) otherwise directly or indirectly participate in any restructuringtransaction with respect to securities of or interests in Yahoo! or SOFTBANK (including, recapitalizationin each case, liquidation equity, partnership or similar transaction involving the Corporation derivative or other interests in any of its affiliates or any part of their respective assets or businesses;
form), unless, in each case, Yahoo! owns more than fifty percent (iii50%) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(vii) make any public announcement or take any action in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person Company or group the right to appoint a majority of persons; the Board of the Company (in the case of a transaction described in Sections 8.2(c)(ii)(A), (B) or (iiC) the approval with respect to Yahoo!) or entering into by the Corporation of, or the public announcement SOFTBANK owns more than fifty percent (50%) of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation Company or more than the right to appoint a majority of the assets Board of the CorporationCompany (in the case of a transaction described in Sections 8.2(c)(ii)(A), (B) or (C) with respect to SOFTBANK), as applicable. The standstill covenant in this Section 8.2(c) shall terminate on an Initial Public Offering.
Appears in 1 contract
Sources: Share Purchase and Investor Rights Agreement (Alibaba Group Holding LTD)
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates Recipient hereby agrees that in the event that Valassis or its Representatives delivers to not)Recipient, in connection with discussions regarding a Transaction, Evaluation Material from and after the date hereof that constitutes material nonpublic information concerning Valassis or any mannerof its subsidiaries, directlyfor a period of twelve months from the date hereof, indirectly Recipient and its controlled Affiliates and subsidiaries will not, directly or jointly indirectly, acting alone or in concert with any other personothers, during the Restricted Period, without the prior consent of the Board, such consent being determined unless specifically invited in advance by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
Valassis or its Representative: (i) acquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of (A) commence a take-over bid for any securities material portion of the Corporation; assets (other than in the ordinary course of business) or businesses of Valassis or its subsidiaries, (B) effectother than as set forth herein, seek, offer any securities issued by Valassis or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation other economic interest of Valassis or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationsubsidiaries, or (C) purchase any Common Shares option or Convertible Securities, except in connection with the acquisition of other right to acquire such ownership (including from a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
third party); (ii) enter into seek or proposepropose to influence or control the management or the policies of Valassis or to obtain representation on the board of directors (or any committee thereof) of Valassis, offer or agree to enter into solicit or engage participate in the solicitation of any negotiations proxies or consents with respect to any:
any securities of Valassis, or initiate any shareholder proposal for action by Valassis’ shareholders; (Aiii) acquisitionseek or propose to have called, amalgamationor cause to be called, plan any meeting of arrangementstockholders of Valassis; (iv) form, merger, tender offer join or take-over bid, exchange offer or other business combination transaction relating in any way participate in a “group” (as defined under the Exchange Act) with respect to the Corporation any voting securities of Valassis or any of its affiliates subsidiaries, (v) enter into any negotiations, arrangements or understandings with any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of third party with respect to any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
foregoing; (vi) advise, assist assist, encourage, act as a financing source for or encourage otherwise invest in any other person (including forming a “group” in connection with any such personof the foregoing activities; (vii) proposing propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Valassis or any of its subsidiaries; or (viii) disclose any intention, plan or arrangement inconsistent with any of the foregoing; or
. Notwithstanding the foregoing nothing contained herein shall limit or restrict the right or ability of Recipient or its controlled Affiliates or Subsidiaries to confidentially and non-publicly make a bona fide written proposal to the Board of Directors of Valassis with respect to a Transaction. Recipient represents to Valassis that neither it nor any of its controlled Affiliates or subsidiaries owns (viiincluding, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) make any public announcement or take any action in furtherance securities of Valassis as of the foregoingdate hereof; provided that nothing herein shall prevent the Recipient or its Representatives, (eachsubject to compliance with applicable laws, from acquiring beneficial ownership of up to, but no more than, an aggregate of 1.0% of the outstanding common shares of Valassis. The foregoing shall not, however, prohibit Recipient or a “Hostile Action”)controlled subsidiary or Affiliate from complying with relevant laws, rules and regulations.
(b) The provisions of Notwithstanding anything contained in Section 5.3 shall cease 6(a) to applythe contrary, and the Investors shall be permitted to take a Hostile Actionif, from and after: after the date hereof any person or group shall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of Valassis (or any duly constituted committee thereof) to acquire, whether by merger, acquisition, tender or exchange offer or otherwise, more than 50% of the outstanding voting securities of Valassis or assets of Valassis or its subsidiaries representing more than 50% of the consolidated earnings power of Valassis and its subsidiaries, taken as a whole (the “Alternative Transaction”) then Recipient may (i) confidentially and non-publicly propose to acquire any of the commencement assets, businesses or securities issued by Valassis or any business combination or other extraordinary transaction with Valassis; provided, however, that any such confidential and non-public announcement proposal must be in writing and may only be made to Valassis’ financial advisor, ▇.▇. ▇▇▇▇▇▇, or to Valassis’ Board of a take-over bidDirectors; and (ii) publicly propose to acquire any of the assets, which businesses or securities issued by Valassis or any business combination or other extraordinary transaction with Valassis if completed Recipient (A) has presented such proposal to the Board of Directors of Valassis at least five business days prior to its public disclosure and (B) reasonably believes the terms and conditions of such proposed transaction are more favorable to Valassis’ shareholders than those of the Alternative Transaction. Notwithstanding the foregoing, Recipient may take the actions described in clauses (i) or (ii) of the preceding sentence only if it has not solicited, initiated, encouraged or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the transactions described above.
(c) Notwithstanding anything contained in Section 6(a) to the contrary, if, from and after the date hereof (i) any person commences an unsolicited tender or exchange offer which, if consummated, would result in the such person’s acquisition of beneficial ownership of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; Valassis or (ii) a person or “group” (as defined under the approval Exchange Act) enters into an agreement or entering into by the Corporation of, commences a proxy solicitation in which such person or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, whichgroup would, if completedsuccessful, would result elect or acquire the ability to elect one or more directors to the Board of Directors of Valassis then, in the acquisition event that Recipient shall not have solicited, initiated, encouraged or taken any action to facilitate or assist or participate with any such other person or group in connection with the transactions contemplated by clauses (i) and (ii) above, the restrictions set forth in Section 6(a) applicable to Recipient and its controlled subsidiaries and Affiliates shall terminate immediately.
(d) In the event Valassis has agreed with any person or group entity to subject such person or entity to restrictions similar to those set forth in this Section 6 for a period of persons less than twelve months, Valassis shall promptly inform Recipient in writing of more than 50% such shorter period and such shorter period shall, immediately and without any further action of the then outstanding voting securities of Parties, supersede the Corporation or more than a majority of the assets of the Corporationtwelve month restrictive period set forth in this Section 6 and apply to Recipient and its controlled subsidiaries.
Appears in 1 contract
Sources: Confidentiality Agreement (Harland Clarke Holdings Corp)
Standstill. (a) The Investors Without the PCM’s consent, the Primary Stockholder shall not (not, and they shall cause their respective affiliates the Seller and its “affiliates” (as defined in Rule 12b-2 under the Exchange Act) not to, for a period of five (5) years from the date of this Agreement: (i) purchase or otherwise acquire, or offer, seek, propose or agree to notacquire, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any securities of PCM (collectively, “Acquire”), in or any mannerdirect or indirect rights or options to acquire any such securities or any securities convertible into such securities (collectively, directly“Securities”); (ii) seek or propose, indirectly or jointly alone or in concert with others, to control or influence in any other personmanner the management, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding of Directors or the vote policies of any Investor Nominee):
(i) (A) commence PCM, including, but not limited to, a take-over bid for any securities of the Corporationproposal pursuant to Rule 14a-8; (Biii) effectmake, seekor in any way participate, offer directly or propose indirectly, in any take-over bid“solicitation” of “proxies” (as such terms are used in the proxy rules under the Exchange Act and the regulations thereunder) to vote, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation seek to advise or influence any person with respect to the Corporation voting of any voting securities of the other party or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businessessubsidiaries; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join join, or in any way participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person(within the meaning of Section 13(d)(3) proposing any of the foregoingExchange Act); or
(viiv) make any proposal or any statement regarding any proposal, whether written or oral, to the Board of Directors of PCM or any director or officer of PCM, or otherwise make any public announcement or take proposal whatsoever, with respect to the Transaction or any action other transaction or proposed transaction between the parties, any of its respective security holders or any of its respective affiliates, including, without limitation, any acquisition, tender or exchange offer, merger, sale of assets or securities, or other business combination, unless (a) the PCM’s Board of Directors or its designated Representatives shall have requested in furtherance advance the submission of the foregoingsuch proposal, (eachb) such proposal is directed to PCM’s Board of Directors or its designated Representatives, a “Hostile Action”and (c) any public announcement with respect to such proposal is approved in advance by PCM’s Board of Directors; or (vi) providing financing (including guarantees), in whole or in part, to any person with respect to the matters in clauses (i)-(v) above.
(b) The provisions of Notwithstanding Section 5.3 shall cease to apply9.6(a), and the Investors Primary Stockholder shall be permitted to take a Hostile ActionAcquire Securities constituting, from directly or indirectly, no more than 300,000 shares of PCM’s common stock (as adjusted for stock splits, recapitalizations and after: (i) the commencement or public announcement like), subject to the Primary Stockholder’s concurrent execution of a take-over bidvoting agreement in a form most favorable to PCM, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation as determined solely by any person or group of persons; or (ii) the approval or entering PCM taking into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationaccount applicable Legal Requirements.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pcm, Inc.)
Standstill. The Shareholder hereby agrees that, from and after the date hereof, the Shareholder and its Affiliates shall not, directly or indirectly, (i) except with the prior written consent of Parent or (ii) unless expressly contemplated by the terms of this Agreement or the Merger Agreement:
(a) The Investors shall not sell, transfer, tender, pledge, encumber, assign or otherwise dispose of (and they shall cause their respective affiliates to notcollectively, a “Transfer”), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, any or all of the Subject Shares of the Shareholder or any of its Affiliates;
(b) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire Common Stock or any other securities of Target, or any assets of Target or any Subsidiary or division thereof, except pursuant to the 10b5-1 Plan, dated August 22, 2006, prior to February 22, 2007;
(c) make, or in any mannerway participate in, directlydirectly or indirectly, indirectly or jointly or any “solicitation” of “proxies” (as such terms are used in concert with any other person, during the Restricted Period, without the prior consent rules of the BoardSecurities and Exchange Commission (the “SEC”)) to vote (including by consent), such consent being determined by a simple majority vote of the Board (excluding the vote of or seek to advise or influence any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation Person with respect to the Corporation voting of, any voting securities of Target (including, without limitation, by making publicly known the position of the Shareholder or any of its subsidiaries or disposition Affiliates on any matter presented to shareholders of more Target), other than a majority to recommend that shareholders of Target vote in favor of the assets of Merger and the Corporation, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such personMerger Agreement;
(iid) enter into or propose, offer or agree submit to enter into or engage in Target any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to shareholder proposal under Rule 14a-8 under the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businessesExchange Act;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates;
(vi) advise, assist or encourage any person (including forming a “group” with any such person) proposing any of the foregoing; or
(viie) make any public announcement with respect to, or take submit a proposal for, or offer of (with or without conditions) any action extraordinary transaction involving Target or its securities or assets;
(f) form, join or in furtherance any way participate in a “group” (as defined in Section 13(d)(3) under the Exchange Act) in connection with any of the foregoing;
(g) seek in any way, directly or indirectly, to have any provision of this Section 3.1 amended, modified or waived; or
(eachh) otherwise take, a “Hostile Action”directly or indirectly, any actions with the purpose or effect of avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the effect of preventing, impeding, interfering with or adversely affecting the consummation of the transactions contemplated by the Merger Agreement or its ability to perform its obligations under this Agreement; provided; however, that at no time and in no event shall the shares of Common Stock subject to Section 3.1(a) above exceed the Maximum Restricted Amount, and if the Subject Shares exceed the Maximum Restricted Amount, then only such number of shares as equals the Maximum Restricted Amount shall be subject to Section 3.1(a).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Voting Agreement (Pw Eagle Inc)
Standstill. Recipient hereby acknowledges and agrees that, for a period of six (6) months after the date of this Agreement (the “Restricted Period”), unless Recipient has received prior written consent from Iconix, it will not, and it will cause its Representatives not to, directly or indirectly:
(a) The Investors shall not (and they shall cause their respective affiliates acquire, offer to not)acquire, in or agree to acquire, directly or indirectly, by purchase or otherwise, any manner, directly, indirectly securities or jointly direct or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for indirect rights to acquire any securities of Iconix, any securities convertible into or exchangeable for any such securities, any options or other derivative securities or contracts or instruments in any way related to the Corporation; price of shares of common stock of Iconix, or any assets or property of Iconix;
(Bb) effectmake, seekor in any way participate in, offer directly or propose indirectly, any take-over bid“solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote (or the solicitation of consents), amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation seek to advise or influence any person or entity with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationvoting of, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition grant of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations consents with respect to, any voting securities of Iconix, or call or seek to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales of any of the Equity Securities held by the Investor;
(iv) solicit proxies from shareholders or form, join or participate in call a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation Iconix’s stockholders or initiate any of its affiliates or through action by written consent any stockholder proposal for consideration for action by securityholdersIconix’s stockholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for seek election to the Board or to place a representative on the board of directors of any of the Corporation’s affiliates (other than pursuant to the nomination rights expressly set forth in this Agreement) Iconix or seek the removal of any member of the Board or director from the board of directors of any of the Corporation’s affiliatesIconix;
(vic) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business combination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving Iconix or its securities or assets;
(d) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any voting securities of Iconix;
(e) have any discussions or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, assist or encourage encourage, any person (including forming a “group” other persons in connection with any such person) proposing any of the foregoing; or
(viif) make any public announcement or take any action in furtherance that would require Iconix to make a public announcement regarding the possibility of a Relationship or any of the foregoing, (each, a “Hostile Action”)events described in this Section 7.
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: (i) the commencement or public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% of the then outstanding voting securities of the Corporation by any person or group of persons; or (ii) the approval or entering into by the Corporation of, or the public announcement of the approval or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporation.
Appears in 1 contract
Sources: Nondisclosure and Restrictive Covenant Agreement (Iconix Acquisition LLC)
Standstill. Unless approved in advance in writing by the board of directors of the Company, the Investor and the Parent agree that, neither they nor any of their Representatives (aas defined below) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly acting on behalf of or in concert with the Investor or the Parent (or any other personof their Representatives) will, during until 16 months following the Restricted PeriodClosing (“Standstill Expiration”), without the prior consent directly or indirectly:
(a) Make any statement or proposal to any of the Board, such consent being determined by a simple majority vote Company’s Representatives or any of the Board Company’s stockholders (excluding other than a private communication with one or more members of the vote board of directors of the Company) regarding, or make any Investor Nominee):public announcement, proposal, or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek, or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media)
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamationbusiness combination, merger, arrangementtender offer, business combinationexchange offer, re-organization, restructuring or liquidation with respect to similar transaction involving the Corporation Company or any of its subsidiaries or disposition of more than a majority of the assets of the Corporationsubsidiaries, or (C) purchase any Common Shares or Convertible Securities, except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate of the Investor, where the Common Shares of Convertible Securities held by such person do not comprise a material portion of the assets of such person;
(ii) enter into or propose, offer or agree to enter into or engage in any negotiations with respect to any:
(A) acquisition, amalgamation, plan of arrangement, merger, tender offer or take-over bid, exchange offer or other business combination transaction relating to the Corporation or any of its affiliates or any part of their respective assets or businesses; or
(B) any restructuring, recapitalization, liquidation liquidation, or similar transaction involving the Corporation Company or any of its affiliates or any part of their respective assets or businesses;
subsidiaries, (iii) engage in short sales any acquisition of any of the Equity Securities held by Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Investor;
Company’s loans, debt securities, equity securities, or assets, (iv) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or seek representation on the board of directors of any the Company or otherwise seek to control or influence the management, board of directors, or policies of the Corporation’s affiliates Company, or (v) any proposal, arrangement, or other than pursuant to statement that is inconsistent with the nomination rights expressly set forth in terms of this Agreement) or seek the removal of any member of the Board or the board of directors of any of the Corporation’s affiliates, including this Section 4.11;
(vib) adviseinstigate, encourage, or assist or encourage any person third party (including forming a “group” with any such personthird party) proposing to do, or enter into any discussions or agreements with any third party with respect to, any of the foregoingactions set forth in Section 4.11(a); or
(viic) make any public announcement or take any action in furtherance that would reasonably be expected to require the Company or any of its Affiliates to make a public announcement regarding any of the foregoingactions set forth in Section 4.11(a). In addition, until the Standstill Expiration, unless approved in advance in writing by the board of directors of the Company, the Investor and the Parent agree that, neither the Investor nor the Parent, nor any of the direct and indirect subsidiaries of the Parent or the Investor, nor any officer of Parent (each, a “Hostile Action”).
(b) The provisions within the meaning of Section 5.3 shall cease 3b-2 of the Securities Exchange Act of 1934, as determined by the Board of Directors of the Parent) acting on behalf of or in concert with the Investor or the Parent, will acquire (or propose or agree to applyacquire), and of record or beneficially, by purchase or otherwise, any loans, debt securities, equity securities, or assets of the Investors shall be permitted Company or any of its subsidiaries, or rights or options to take a Hostile Actionacquire interests in any of the Company’s loans, from and after: debt securities, equity securities, or assets, other than (i) equity securities acquired from the commencement or public announcement of a take-over bid, which if completed would result Company in the acquisition of more than 50% of the then outstanding voting exchange for equity securities of the Corporation Company currently held by the Investor, the Parent, any person of the direct and indirect subsidiaries of the Parent and the Investor or group any of persons; or such officers and (ii) the approval or entering into by the Corporation of, or the public announcement acquisition of the approval or entering into Shares as contemplated by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities of the Corporation or more than a majority of the assets of the Corporationthis Agreement.
Appears in 1 contract
Standstill. (a) The Investors shall not (and they shall cause their respective affiliates to not), in any manner, directly, indirectly or jointly or in concert with any other person, during the Restricted Period, without the prior consent of the Board, such consent being determined by a simple majority vote of the Board (excluding the vote of any Investor Nominee):
(i) (A) commence a take-over bid for any securities of the Corporation; (B) effect, seek, offer or propose any take-over bid, amalgamation, merger, arrangement, business combination, re-organization, restructuring or liquidation with respect to the Corporation or any of its subsidiaries or disposition of more than a majority of the assets of the Corporation, or (C) purchase any Common Shares or Convertible Securities, except Except in connection with the acquisition of a person that holds Common Shares or Convertible Securities by the Investor or an affiliate pursuant to the terms of this Agreement, the Investor shall not, without the written consent of the Company, acquire directly or indirectly, in a public or private transaction, including by purchase in the open market, any Common Stock if the Investor, where ’s Beneficial Ownership of the Common Shares of Convertible Securities held Stock would thereafter exceed [***] percent ([***]%). In addition, unless approved in advance in writing by such person do not comprise a material portion of the assets of such person;
(ii) enter into Company, the Investor agrees that it will not, directly or propose, offer or agree to enter into or engage in any negotiations with respect to anyindirectly:
(i) Make any statement or proposal to the Company, other than a non-public statement or proposal delivered directly to the Chief Executive Officer or Chairman of the Board of Directors, or to any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including an “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (A) acquisition, amalgamation, plan of arrangementany business combination, merger, tender offer or take-over bidoffer, exchange offer or other business combination similar transaction relating to in the Corporation or any of its affiliates or any part of their respective assets or businesses; or
Company, (B) any restructuring, recapitalization, liquidation or similar transaction involving the Corporation or Company, (C) any of its affiliates or any part of their respective assets or businesses;
(iii) engage in short sales acquisition of any of the Equity Securities held by the Investor;
Company’s equity securities or assets or rights or options to acquire equity securities or assets, (ivD) solicit proxies from shareholders or form, join or participate in a group to so solicit, other than any solicitation of proxies voting in favour of the nominees of management of the Corporation for election to the Board;
(v) present or request to present at any meeting of the securityholders of the Corporation or any of its affiliates or through action by written consent any proposal for consideration for action by securityholders, requisition a meeting of the securityholders of the Corporation or any of its affiliates, propose or request to propose any nominee for election to the Board or seek representation on the board of directors of any of the Corporation’s affiliates (other than pursuant Company or otherwise seek to control or influence the nomination rights expressly set forth in this Agreement) or seek the removal of any member of the Board or the management, board of directors of any or policies of the Corporation’s affiliatesCompany or (E) any proposal, arrangement or other statement that is inconsistent with this Section 6.2;
(viii) adviseInstigate, encourage or assist or encourage any person Third Party (including forming a “group” with any such personthird party) proposing to do, or enter into any discussions or agreements with any Third Party with respect to, any of the foregoing; or
(vii) make any public announcement or take any action actions set forth in furtherance of the foregoing, (each, a “Hostile Action”).
(b) The provisions of Section 5.3 shall cease to apply, and the Investors shall be permitted to take a Hostile Action, from and after: clause (i) above;
(iii) Take any action which would reasonably be expected to require the commencement Company or any of is Affiliates to make a public announcement of a take-over bid, which if completed would result in the acquisition of more than 50% regarding any of the then outstanding voting securities actions set forth in clause (i) above; Notwithstanding the foregoing provisions, the restrictions set forth in this Section 6.2(a) shall terminate and be of no further force and effect (x) if [***], provided that the Corporation by any person or group provisions of personsthis Section 6.2(a) shall be revived if [***]; (y) upon [***]; or (iiz) so long as the approval or entering into by the Corporation of, or the public announcement Investor’s Beneficial Ownership remains less than [***] percent ([***]%) of the approval Company’s Common Stock, provided that the provisions of this Section 6.2(a) shall be revived at any time when the Investor’s Beneficial Ownership equals [***] percent ([***]%) or entering into by the Corporation of, a transaction or definitive agreement providing for a transaction, which, if completed, would result in the acquisition by any person or group of persons of more than 50% of the then outstanding voting securities Company’s Common Stock. [***] Portions of this exhibit have been redacted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Corporation or more than a majority of the assets of the CorporationCommission.
Appears in 1 contract