Standstill. 10.1. From and after the Closing, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly: (a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock; (b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9; (c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company; (d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board; (e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder; (f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries; (g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof; (h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or (i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1. 10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”). 10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process. 10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 3 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Arthrocare Corp), Securities Purchase Agreement (OEP AC Holdings, LLC)
Standstill. 10.1. From During the period commencing on the date of this Agreement and after ending at the Closing, without time the prior consent Seller and its Affiliates no longer beneficially own in excess of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Eventvoting securities of the Buyer, the Investor Seller shall not, and shall cause its directorsAffiliates and Representatives, officers, employees, representatives and Affiliates controlled by (but not under common control with) to the Investor and any other Affiliates that have received Company Confidential Informationextent such Representatives are acting on behalf of such Seller or its Affiliates, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way knowingly assistassist (including, or knowingly facilitate without limitation, through the provision of financing) any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect effect, or cause or participate in, (i) any acquisition of beneficial ownership (as such term is defined under the Exchange Act) of any Voting Stock securities of the Buyer or securities or rights convertible into or options exchangeable for any securities of the Buyer (except by way of stock dividends or other distributions or offerings made available to acquire holders of voting securities of the Buyer generally on a pro rata basis, provided that any Voting Stocksuch securities so received shall be subject to this Section 5.16, Section 5.14 and Section 5.15), (ii) any tender or exchange offer, merger or other business combination involving the Company, any acquisition of its Subsidiaries or material assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its SubsidiariesBuyer, or (iii) any tender or exchange offer involving the securities of the Buyer, or (iv) any merger, other business combination, recapitalization restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Buyer.
(b) engage, or in any way participate, in any “solicitation” of “proxies” (as such terms are used term is defined in Rule 14a-1(l) under the proxy rules Exchange Act) of proxies or consents (whether or not relating to the Commission) election or written consents removal of directors); seek to advise, encourage or influence any Person with respect to the voting of any Voting Stock voting securities of the Company;
(d) Buyer; initiate, propose or make or submit any stockholder proposalproposals, whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; induce or attempt to induce any other Person to initiate any such stockholder proposal; or otherwise communicate to any Person how it intends to vote any voting securities of the Buyer on any matter put to or proposed to be put to the stockholders of the Buyer for their approval (whether at an annual or special meeting of stockholders of the Buyer, or, except as expressly contemplated by this Agreement written consent or the Certificate of Designations, otherwise) or otherwise seek to remove any director of the election or appointment to, or representation on, or the nomination of any candidate to, the BoardBuyer;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gc) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of as such term is used under the Exchange Act) with respect to the Company involving any securities of the actions items described under clauses (a) through (f) hereofBuyer;
(hd) knowingly otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Buyer;
(e) take any action which would or would reasonably be expected to result in that might force the Company having Buyer to make a public announcement regarding any of the actions described under types of matters set forth in clause (a) or (b) above; or
(f) enter into discussions or arrangements with any third-party with respect to any of the matters set forth in clauses (a) through (fe) hereof; or
(i) otherwise take above. The Seller also agrees during such period not to request, directly or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1indirectly, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance Buyer (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control withemployees or agents) the Investor and amend or waive any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes provision of this Section 10, a “Pending COC Event” means, the earlier of 5.16 (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlincluding this sentence).
Appears in 3 contracts
Sources: Interest Purchase Agreement, Interest Purchase Agreement (Avnet Inc), Interest Purchase Agreement (Tech Data Corp)
Standstill. 10.1. From The Shareholder covenants and after agrees with VCIF that, from the Closingdate hereof through the termination of this Agreement pursuant to Section 8, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall will not, and shall will cause its respective principals, directors, general partners, members, officers, employees, representatives agents (in each case, acting on the Shareholder’s behalf), affiliated persons (as defined in the Investment Company Act) and Affiliates controlled by (but not Representatives under common control with) the Investor Shareholder’s control, and any other Affiliates that have received Company Confidential Informationof the Shareholder (all such Persons, collectively, the “Shareholder Entities”), not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage alone or in a collared hedging transaction concert with other Persons (including by directing, requesting or suggesting that any other Person take any of the Common Stock following the conclusion actions set forth below), unless specifically permitted in writing in advance by VCIF, take any of the period actions with respect to VCIF as set forth in Section 9;below:
(ca) effect effect, seek, offer, engage in, propose (whether publicly or otherwise and whether or not subject to conditions) or cause, participate in or act to, or assist any other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) to effector cause, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, act to:
(i) any acquisition “solicitation” of “proxies” or become a “participant” in any such “solicitation” as such terms are defined in Regulation 14A under the Exchange Act, including any otherwise exempt solicitation pursuant to clause (iv) of Rule 14a-1(l)(2) and including any otherwise exempt solicitation pursuant to Rule 14a-2(b), in each case, with respect to securities of VCIF (including, without limitation, any solicitation of consents to act by written consent or call a special meeting of shareholders);
(ii) knowingly encourage or advise any other Person or knowingly assist or act to assist any Person in so encouraging or advising any Person with respect to the giving or withholding of any Voting Stock proxy, consent or other authority to vote (other than such encouragement or advice that is consistent with the VCIF Board’s or ▇▇▇▇▇▇▇’▇ recommendation with respect to VCIF in connection with such matter or encouragement or advice solely amongst the Shareholder Entities) with respect to VCIF;
(iii) engage, directly or indirectly, in any short sale that derives all or substantially all of its value from a decline in the market price of VCIF (for the avoidance of doubt, the Shareholder and its Affiliates may short-sell broad based indices);
(iv) any acquisition or agreement to acquire any voting or equity securities (or beneficial ownership thereof) of VCIF or direct or indirect rights or options to acquire acquire, or instruments which are convertible into, any Voting Stockvoting or equity securities of VCIF, or a material portion of the consolidated assets of VCIF, or any derivative securities or contracts the value of which is directly or indirectly tied to or derived from VCIF;
(iiv) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or VCIF;
(iiivi) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) recapitalization, restructuring, liquidation, dissolution or written consents other extraordinary transaction with respect to any Voting Stock of the CompanyVCIF;
(db) initiateform, make join or submit in any stockholder proposal, whether made pursuant to Rule 14a-8 under way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or and Rule 13d-5(b)(1) thereunder) (other than a group that consists solely of members of the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the BoardShareholder Entities) with respect to VCIF;
(ec) deposit any Voting Stock securities of VCIF in any voting trust or subject any Voting Stock securities of VCIF to any arrangement or agreement with respect to the voting of the securities of VCIF, including, without limitation, lend any Voting Stock that is inconsistent securities of VCIF to any Person for the purpose of allowing such Person to vote such securities in connection with any shareholder vote or consent of VCIF or to sell such securities, other than any such voting trust, arrangement or agreement solely among the voting obligations members of the Investor hereunderShareholder and its Affiliates;
(fd) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise actseek, alone or in concert with others, (i) election or appointment to, or representation on, the VCIF Board, or nominate or propose the nomination of, or recommend the nomination of, any candidate to seek representation on the VCIF Board, (ii) the removal or to control or influence the management, Board or policies resignation of any member of the Company VCIF Board, (iii) the removal or replacement of ▇▇▇▇▇▇▇ or any of its SubsidiariesAffiliates as the investment adviser to VCIF, (iv) the alteration, modification, or termination of the Investment Advisory Agreement, or (v) to knowingly encourage any such actions in clauses (i) through (iv);
(e) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of VCIF (pursuant to Rule 14a-8 under the Exchange Act or otherwise), or take any action (other than in accordance with this Section 6) with respect to any shareholder proposal or written consent in a manner that is not supported by the VCIF Board;
(f) make a request for a shareholder list or other books and records of VCIF under Delaware law or any other statutory or regulatory provision;
(g) form, join seek to control or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) publicly influence ▇▇▇▇▇▇▇ with respect to VCIF, the Company involving any VCIF Board or policies of the actions items described under clauses (a) through (f) hereofVCIF;
(h) knowingly take make any action which would or would reasonably be expected proposal with respect to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire change in the secondary market such additional number or term of shares directors or the filling of Common Stock necessary to maintain any vacancies on the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company)VCIF Board, (ii) following any change in the conclusion capitalization, share purchase program, dividend policy or distribution policy of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transfereesVCIF, (iii) disclosing the Investorany other material change in VCIF’s intention management, business or corporate structure with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this AgreementVCIF, or (iv) from exercising its rights related any waiver, amendment or modification to the Preferred Directors in Organizational Documents of VCIF;
(i) enter into any negotiations, arrangements or understandings with any Person with respect to any of the Certificate foregoing, or advise, knowingly assist or knowingly encourage others to take any action with respect to any of Designations and this Agreement and the exercise by such Preferred Directors foregoing; or
(j) publicly request (x) that VCIF, the VCIF Board or any of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from respective Representatives amend or waive any further Board discussions relating to such process.
10.4. For purposes provision of this Section 10, a “Pending COC Event” means, the earlier of 6 (aincluding this sentence) or (y) the date on which VCIF Board to specifically invite the Board (i) publicly recommends that the stockholders tender their shares Shareholder Entities to take any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within actions prohibited by this Section 6. Nothing in this Section 6 shall be deemed to prohibit the Shareholder Entities from communicating privately with the directors, officers, and advisors of VCIF (including Carlyle) so long as such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the private communications would not be reasonably expected to trigger public announcement by the Company that it recommends disclosure obligations for any transaction that, if consummated, would result in a Change of ControlParty.
Appears in 3 contracts
Sources: Voting, Support and Standstill Agreement (Carlyle Group Inc.), Voting, Support and Standstill Agreement (Carlyle Group Inc.), Voting, Support and Standstill Agreement (Carlyle Group Inc.)
Standstill. 10.1. From The Stockholder agrees that, for a period of three years following the date hereof (the "Standstill Period"), it will not (and after the Closingit will ensure that its affiliates (and any person acting on behalf of or in concert with it or any affiliate) will not), without the ACE's prior consent of the Boardwritten approval, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwiseotherwise acquire (or enter into any agreement or make any proposal, including any proposal which is made public, to purchase or otherwise acquire) any securities of ACE, agree any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities if upon any such purchase or offer acquisition the Stockholder owns or has the right to acquire Voting Stock (whether or direct not presently) five percent or indirect rights or options to acquire Voting Stock;
more of the outstanding voting shares of ACE, (b) enter into a short ofsolicit proxies from stockholders of ACE or otherwise seek to influence or control the management or policies of ACE or any of its affiliates, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seekform, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in join or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose participate in a "group" (whether publicly or otherwisewithin the meaning of Section 13(d)(3) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iiiExchange Act) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock voting securities of the Company;
ACE or any of its subsidiaries, (d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of Directors or policies of ACE, (e) disclose any intention, plan or arrangement inconsistent with the Company foregoing or its Subsidiaries;
(gf) formassist, join advise or encourage any other person in doing any way participate of the foregoing; provided, however, that this Section 8 shall not prohibit the purchase or other acquisition of securities of ACE by any person described in a “group” Rule 13d-1(b)(1)(i) and (within the meaning of Section 13(dii) of the Exchange Act. The Stockholders also agree during such period not to request ACE (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provisions of this Section 8 (including this sentence) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly or take any action which would or would reasonably be expected to result in the Company having might require ACE to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company possibility of a definitive agreement which if consummated will result in a Change of Controlbusiness combination, merger or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlextraordinary transaction.
Appears in 3 contracts
Sources: Stockholder Support Agreement (Ace LTD), Stockholder Support Agreement (Ace LTD), Stockholder Support Agreement (Ace LTD)
Standstill. 10.1. From (a) The Frost Group Shareholders hereby covenant and after agree that during the Closing, without five year period commencing on the prior consent date hereof and expiring on the 5th year anniversary of the Boardeffective date of this Agreement, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor each Frost Group Shareholder shall not, and shall not permit or cause its directorsany affiliate, officersassociate, employees, representatives and Affiliates controlled by immediate family member (but not as such term is defined in Regulation S-K under common control withthe Exchange Act) the Investor and any other Affiliates that have received Company Confidential Information, not or group member to, on its behalf, directly or indirectly:
(ai) by purchase or otherwiseengage in any transactions in any class of securities of the Company, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stockincluding any derivative;
(bii) enter into a short of, or trade in, derivative solicit proxies with respect to any securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9Company;
(ciii) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce actively oppose any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition action approved by a majority of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the board of directors of the Company, or become a “participant” in any “election contest” relating to the election of its Subsidiaries or assets directors of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in rule 14a-11 of Regulation 14A promulgated under the proxy rules Exchange Act (or any comparable or successor rule));
(iv) propose, make or initiate, or solicit stockholders of the CommissionCompany for the approval of, one or more stockholder proposals;
(v) propose, or make, initiate or solicit any proposals from, or provide any information or participate in any discussions or negotiations with, or otherwise cooperate in any way with or assist, any person concerning any merger, consolidation, other business combination, tender or exchange offer, recapitalization, liquidation or dissolution or any purchase or other acquisition or sale or other disposition of assets (other than in the ordinary course of business) or written consents with respect to shares of capital stock of the Company or any Voting Stock of its subsidiaries or divisions or any similar transaction involving the Company or any subsidiary or division of the Company;
(dvi) initiate, make take any other action for the purpose of or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under with the Exchange Act effect of changing or otherwise, or, except as expressly contemplated by this Agreement or influencing the Certificate control of Designations, otherwise seek the election or appointment toCompany, or representation on, in connection with or the nomination of as a participant in any candidate to, the Boardtransaction having that purpose or effect;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gvii) form, join or in any way participate in a any “group” (within the meaning of Section 13(d13(d)(3) of the Exchange Act or Rule 13d-5(b)(i) promulgated under the Exchange Act) with respect to the Company involving any securities of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofCompany; or
(iviii) otherwise take induce, attempt to induce, encourage or cause solicit, or cooperate with, any action inconsistent with other Person to do any of the foregoing provisions of this Section 10.1foregoing.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 3 contracts
Sources: Standstill Agreement (Pharmaceutical Financial Syndicate, LLC), Standstill Agreement (Winston Pharmaceuticals, Inc.), Standstill Agreement (Winston Pharmaceuticals, Inc.)
Standstill. 10.1. From and after (a) Until the Closing, without the prior consent of the Board, the Investor hereby agrees date that until such time as is the earlier to occur of (xi) it ceases to Beneficially Own the date that is five (5% ) years from the date of the Total Voting Powerthis Agreement, and (yii) a Pending COC Eventthe date that is one (1) year following the Phase One Effective Date (as defined in the Offtake Agreement), the Investor shall will not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, without the prior written consent of Corporation or as otherwise expressly permitted under this Agreement:
(i) effect, seek, offer or propose, or in any way advise or encourage any other Person to seek representation on effect, seek, offer or to control propose (in each case, whether publicly or influence otherwise):
(A) any take-over bid, merger, amalgamation, plan of arrangement, reorganization or other business combination involving the management, Board Corporation or policies any of the Company or its Subsidiariesassets;
(gB) formany recapitalization, join restructuring, liquidation, dissolution, disposition of a material portion of the assets or other extraordinary transaction with respect to the Corporation or any of its assets;
(ii) directly or indirectly make, or in any way participate in a “group” (within the meaning in, any solicitation of Section 13(d) of the Exchange Act) with respect proxies to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would vote, or would reasonably be expected seek to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take advise or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and influence any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned voting securities of the Corporation;
(iii) otherwise act in a manner to seek to control the management, Board or the policies of the Corporation beyond the board and committee representation provided in this Agreement;
(iv) enter into any arrangements, understandings or agreements, whether written or oral, with, or advise, finance, aide, encourage or act in concert with, any other Persons in connection with any of the foregoing;
(v) make any public announcement of any intention to do or take any of the foregoing or take any action that could require the Corporation to make a public announcement with respect to any of the foregoing; or
(vi) attempt to induce any party not to make or conclude any proposal with respect to the Corporation by it so long threatening or indicating that Investor may take any of the foregoing actions.
(b) Investor will not, alone or in concert with others, without the prior written consent of Corporation or as such voting intention is consistent with the terms of otherwise expressly permitted under this Agreement, Purchase any Equity Securities (i) until the completion or termination of the Second Tranche Investment, and (ivii) from following completion or termination of the Second Tranche Investment, that would result in the Investor owning, or exercising control over, more than 20% of the then outstanding Common Shares.
(c) Notwithstanding the foregoing, the limitations and prohibitions set forth in this Section 5.4 shall not apply to any confidential offer or proposal made by the Investor or its rights related Affiliates to the Preferred Directors in Board and shall no longer apply from the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier earliest of (ai) the date on which the Board (i) publicly recommends Corporation enters into a definitive agreement with a third party that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Controlprovides for an acquisition of, or business combination with, the Corporation where the securityholders of the Corporation would own less than 50% of the voting securities of the surviving Corporation, (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of date the Company within such time period, (b) the execution by the Company of Corporation enters into a definitive agreement which if consummated will result in with a Change third party that provides for an acquisition of Controlall or substantially all of the assets of the Corporation; or (iii) the date a third party enters into a definitive agreement to acquire, or acquires, "beneficial ownership" (cas such term is defined in the Securities Act (British Columbia), as amended) of more than 50% of the public announcement by voting securities of the Company Corporation. In the event that it recommends any the proposed transaction thatin (i), if consummated(ii) or (iii) is terminated, would result the limitations and prohibitions set forth in a Change of Controlthis Section 5.4 shall be reinstated.
Appears in 3 contracts
Sources: Master Purchase Agreement (1397468 B.C. Ltd.), Investor Rights Agreement (1397468 B.C. Ltd.), Investor Rights Agreement (Lithium Americas Corp.)
Standstill. 10.1. From and after (a) Each Investor agrees that, from the Closingdate of this Agreement until the expiration of the Standstill Period (as defined below), without the prior written consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% a majority of the Total Voting PowerBoard specifically expressed in a written resolution, neither it nor any of its Related Persons (as defined herein) nor any other persons acting under the control or direction of any of the Investors, will, and (y) a Pending COC Eventit will cause each of its Affiliates, the Investor shall not, Associates and shall cause such other persons under its directors, officers, employees, representatives and Affiliates controlled by (but control not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in alone or in concert with others, in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, manner:
(i) propose or publicly announce or otherwise disclose an intent to propose or enter into or agree to enter into, singly or with any acquisition of any Voting Stock other person, directly or rights or options to acquire any Voting Stockindirectly, (iix) any tender form of business combination or exchange offer, merger acquisition or other business combination involving the Company, any transaction relating to a material amount of its Subsidiaries assets or assets securities of the Company or any of its Subsidiaries constituting subsidiaries, (y) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (z) any form of tender or exchange offer for the Common Stock, whether or not such transaction involves a significant portion change of control of the consolidated assets Company;
(ii) engage in any solicitation of proxies or written consents to vote any voting securities of the Company and its SubsidiariesCompany, or (iii) conduct any “solicitation” of “proxies” (as such terms are used in the proxy rules non-binding referendum with respect to any voting securities of the Commission) Company, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies or written consents with respect to any Voting voting securities of the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote any securities of the Company in opposition to any recommendation or proposal of the Board;
(iii) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, any (A) interests in any of the Company’s indebtedness, or (B) economic ownership of any Common Stock (including any rights decoupled from the underlying securities of the Company) representing in the aggregate (amongst all of the Investors and any Affiliate or Associate thereof) in excess of 10% of the shares of Common Stock outstanding;
(iv) seek to 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 Company, other than in a manner in accordance with a recommendation made by the Board;
(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 Investors to any person or entity not an (A) party to this Agreement, (B) member of the Board, (C) officer of the Company, or (D) an Affiliate or Associate of the Investors (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any, beneficial, economic or other ownership interest representing in the aggregate in excess of 5.0% of the shares of Common Stock outstanding at such time;
(vi) knowingly, intentionally, purposefully, or willfully 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 Investors to any member of the Leder Group or any Affiliate or Associate thereof;
(vii) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(dviii) take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Restated Articles of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(ix) initiate, make propose or submit otherwise “solicit” shareholders of the Company for the approval of any stockholder proposal, shareholder proposals (whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(x) communicate with shareholders of the Company or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act;
(xi) engage in any course of conduct with the purpose of causing shareholders of the Company to vote contrary to the recommendation of the Board on any matter presented to the Company’s shareholders for their vote at any meeting of the Company’s shareholders;
(xii) otherwise publicly act to seek to control or influence the management, orthe Board, or policies of the Company or initiate or take any action to obtain representation on the Board, except as permitted expressly contemplated by this Agreement Agreement;
(xiii) call or seek to call, or request the Certificate call of, alone or in concert with others, any meeting of Designationsshareholders, otherwise seek whether or not such a meeting is permitted by the election Company’s Restated Articles of Incorporation or appointment Bylaws, including, but not limited to, a “town hall meeting;”
(xiv) acquire or representation onagree, offer, seek or propose to acquire, or the nomination cause to be acquired, ownership (including beneficial ownership) of any candidate toof the assets or business of the Company or any rights or options to acquire any such assets or business from any person; provided, however, that for the avoidance of doubt, the term “assets” used in this Section 3(a)(xiv) does not include Common Stock;
(xv) seek election to the Board or seek to place a representative on the Board;
(exvi) seek the removal of any director from the Board;
(xvii) deposit any Voting Common Stock in any voting trust or subject any Voting Common Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunderCommon Stock;
(fxviii) except as expressly contemplated by this Agreement seek, or the Certificate of Designations, otherwise act, alone or in concert with othersencourage any person, to seek representation on submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to control or influence the management, Board or policies of the Company or its Subsidiariesseek, encourage or take any other action with respect to the election or removal of any directors of the Company; provided, however, that nothing in this Agreement shall prevent the Investors or their Affiliates or Associates from taking actions, during the sixty (60) days prior to the expiration of the advance notice period for the submission by shareholders of director nominations (as set forth in the advance notice provisions of the Company’s Bylaws) for consideration at the 2018 Annual Meeting, in furtherance of identifying director candidates, solely to be nominated by the Investors, in connection with such annual meeting, so long as such actions do not create a public disclosure obligation for the Investors or the Company and are not publicly disclosed by the Investors or their Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with the Investors’ normal practices in the circumstances;
(gxix) 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 (other than the Investor Group); provided, however, that nothing herein 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 such Affiliate has been disclosed in a Schedule 13D Amendment filed by the Investor Group within two (2) business days disclosing that the Investor has formed a group with such Affiliates;
(xx) take any action that would be deemed, pursuant to this Agreement, to be acting as a “group” (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect another person relating to any action prohibited by this Section 3, including, without limitation, changing or influencing the Company involving any control of the actions items described under clauses (a) through (f) hereofCompany, or in connection with or as a participant in any transaction having that purpose or effect;
(hxxi) knowingly take demand a copy of the Company’s list of shareholders or its other books and records, whether pursuant to any provisions of the California Corporations Code or otherwise;
(xxii) commence, encourage, or support any derivative action which would in the name of the Company, or would any class action against the Company or any of its officers or directors; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Investor from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against an Investor, or (C) exercising statutory dissenters, appraisal or similar rights under the California Corporations Code; provided, further, that the foregoing shall also not prevent the Investors from responding to or complying with a validly issued legal process in connection with litigation that it did not initiate, invite, facilitate or encourage, except as otherwise permitted in this Section (3)(a)(xxii);
(xxiii) disclose publicly or privately, in a manner that could reasonably be expected to result in become public any intent, purpose, plan or proposal with respect to the Company having Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xxiv) enter into any discussions, negotiations, agreements or understandings with any person or entity with respect to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) foregoing, or advise, assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing foregoing;
(xxv) make any request or submit any proposal to amend the terms of this Section 3 other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party;
(xxvi) take any action challenging the validity or enforceability of any of the provisions of this Section 10.1.
10.2. Notwithstanding 3 or publicly disclose, or cause or facilitate the provisions public disclosure (including, without limitation, the filing of Section 10.1any document with the SEC or any other governmental agency or any disclosure to any journalist, if at any time the percentage member of the Total Voting Power Beneficially Owned by the Investor and its Affiliates media or securities analyst) of, any intent, purpose, plan or proposal to either (togetherA) obtain any waiver or consent under, the “Investor Parties”) decreases as a result of an Excluded Issuanceor any amendment of, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms provision of this Agreement, or (ivB) take any action challenging the validity or enforceability of any provisions of this Section 3;
(xxvii) take any action that could reasonably be expected to force the Company to make any public disclosure with respect to any of the foregoing; or
(xxviii) otherwise take, or solicit, cause or encourage others to take, any action inconsistent with the foregoing.
(b) The provisions of this Section 3 shall 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 such director’s fiduciary duties to the Company and its shareholders (it being understood and agreed that neither the Investors nor any of their Affiliates or Associates shall seek to do indirectly through the New Directors anything that would be prohibited if done by any of the Investors or their Affiliates and Associates directly). The provisions of this Section 3 shall also not prevent the Investor Group from exercising freely voting its shares of Common Stock (except as otherwise provided in Section 2 hereto) or taking any actions as specifically contemplated in Section 1 hereto.
(c) As of the date of this Agreement, none of the Investors, nor any of their respective Affiliates or Associates, are aware of any actions seeking to change the composition of the Board, the governance or management of the Company or which actions, if taken by the Investors following the execution of this Agreement, would violate any of the terms hereof, other than any actions that have been publicly disclosed as of the date of this Agreement, by any person, including, but not limited to, any member of the Leder Group, and none of the Investors, nor any of their respective Affiliates or Associates, are engaged in any discussions or negotiations, or have any agreements, arrangements or understandings, written or oral, formal or informal, whether or not legally enforceable, with any person, including, but not limited to, any member of the Leder Group, with respect to any such actions or the acquisition of economic ownership of any securities of the Company, and none of the Investors, nor any of their respective Affiliates or Associates, have any actual and non-public knowledge that any other shareholders of the Company, including, but not limited to, any member of the Leder Group, have any present or future intention of taking any actions, which actions, if taken by the Investors following the execution of this Agreement, would violate any of the terms hereof, other than any such actions that have been publicly disclosed as of the date of this Agreement. The Investors agree to, and shall cause their respective Affiliates and Associates to, refrain from taking any actions during the Standstill Period to intentionally encourage or facilitate other shareholders of the Company or any other persons, including, but not limited to, any member of the Leder Group, to engage, directly or indirectly, in any of the actions that if taken by the Investors or any of their respective Affiliates or Associates would violate any of the terms of this Agreement.
(d) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; the terms “economic owner” and “economically own” shall have the same meanings as “beneficial owner” and “beneficially ownership,” except that a person will also be deemed to economically own and to be the economic owner of (i) all shares of Common Stock which such person has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (ii) all shares of Common Stock in which such person has any economic interest, including, without limitation, pursuant to a cash settled call option or other derivative security, contract or instrument in any way related to the Preferred Directors in the Certificate price of Designations and this Agreement and the exercise by such Preferred Directors shares of their rights and fiduciary duties as directors of the CompanyCommon Stock; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided“person” or “persons” shall mean any individual, howevercorporation (including not-for-profit), that if the Investor elects to participate in such processgeneral or limited partnership, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10limited liability company, a “Pending COC Event” meansjoint venture, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.est
Appears in 2 contracts
Sources: Settlement Agreement (Central Square Management LLC), Settlement Agreement (Pico Holdings Inc /New)
Standstill. 10.1. From and after Except as otherwise contemplated by this agreement, ---------- or unless the ClosingNew Shareholder is invited to do otherwise by the Company's board of directors, without during the prior consent of the BoardStandstill Period, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor New Shareholder shall not, and shall cause not permit any of its directorsaffiliates (within the meaning of Rule 12b-2 under the Exchange Act) (including, officerswithout limitation, employees▇▇▇▇▇ ▇▇ and ▇▇▇▇▇'▇ Controlled Subsidiaries), representatives and Affiliates controlled by (but not under common control or anyone acting on behalf of, or in concert with) , the Investor and New Shareholder or any other Affiliates that have received Company Confidential Informationof its affiliates, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, 5.1 acquire, agree announce an intention to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seekacquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, by purchase, by gift, by joining a partnership, a limited partnership, a syndicate or any group (whether publicly within the meaning of section 13(d)(3) of the Exchange Act) or otherwise, any (a) to effectassets, businesses or properties of the Company or any of its subsidiaries, other than in the ordinary course of business, or announce any intention to effect or cause or (b) Equity Securities;
5.2 participate in the formation or encourage the formation of, or join or in any way knowingly assistparticipate with, any partnership, limited partnership, syndicate, group or other person or entity that owns or seeks to acquire beneficial ownership of Equity Securities;
5.3 solicit, or knowingly facilitate participate in any solicitation of, proxies or become a participant in any election contest (the terms used in this section 5.3 having the respective meanings given them in Regulation 14A under the Exchange Act) with respect to the Company;
5.4 initiate, propose or otherwise solicit shareholders for the approval of one or more shareholder proposals with respect to the Company or induce any other Person person to effect or seek, offer or propose (whether publicly or otherwise) initiate any shareholder proposal;
5.5 seek to effect or participate in, (i) any acquisition place designees on the board of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving directors of the Company, seek the removal of any member of its Subsidiaries or assets the board of directors of the Company or its Subsidiaries constituting a significant portion seek to have called any meeting of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock shareholders of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) 5.6 deposit any Voting Stock Equity Securities in any a voting trust or subject any Voting Stock Equity Securities to any a voting agreement or other agreement or arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereundervoting;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, 5.7 otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board board of directors, policies or policies affairs of the Company or solicit, propose, seek to effect or negotiate with any other person or entity (including, without limitation, the Company) with respect to any form of business combination or other extraordinary transaction with the Company or any of its Subsidiaries;
(g) formsubsidiaries or any restructuring, join recapitalization, similar transaction or other transaction not in any way participate in a “group” (within the meaning ordinary course of Section 13(d) of the Exchange Act) business with respect to the Company involving or any of its subsidiaries, solicit, make or propose or negotiate with any other person or entity with respect to, or announce an intent to make, any tender offer or exchange offer for any Equity Securities, or publicly disclose an intent, purpose, plan or proposal with respect to the Company, any of its subsidiaries or any securities or assets of the Company or any of its subsidiaries, that would violate the provisions of this section 5, or assist, participate in, facilitate or solicit any effort or attempt by any person or entity to do or seek to do any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofforegoing; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of 5.8 request the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control withemployees or agents) the Investor and to amend or waive any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 provision of this Agreementsection 5 (including, (wwithout limitation, this section 5.8) pursuant or otherwise seek any modification to the conversion or waiver of any of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends agreements or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more obligations of the Total Voting Power New Shareholder or its affiliates (including, without limitation, ▇▇▇▇▇ ▇▇ and Bayer's Controlled Subsidiaries) under this section 5. Notwithstanding any of the Company), (ii) following foregoing sections 5.1 through 5.8 and during the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.Standstill Period:
Appears in 2 contracts
Sources: Shareholder Agreements (Schein Pharmaceutical Inc), Shareholder Agreements (Schein Pharmaceutical Inc)
Standstill. 10.1. From and after the Closing, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor The Stockholder shall not, during the period commencing on the date of this Agreement and shall cause its directors, officers, employees, representatives and Affiliates controlled by continuing for 12 months after the earlier of (but not under common control witha) the Investor Closing Date and any other Affiliates (b) the Expiration Date (such period, the “Standstill Period”), unless such action is expressly contemplated by the Merger Agreement or otherwise shall have been specifically invited in writing by the Parent Board (it being understood that have received Company Confidential Informationexecution of this Agreement by Parent does not constitute such an invitation), and the Stockholder will direct its Representatives not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwiseotherwise and whether or not subject to conditions) to effecteffect or seek, or announce any intention to effect or seek, or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or otherwise participate in, :
(i) any acquisition of of, or obtaining any Voting Stock economic interest in, any right to direct the voting or rights disposition of, or options to acquire any Voting other Right with respect to, any Parent Common Stock, ;
(ii) any tender or exchange offer, merger or other consolidation, acquisition, merger, joint venture, business combination or extraordinary transaction involving the Company, Parent or any of its Subsidiaries or assets of the Company all or its Subsidiaries constituting a significant material portion of the consolidated assets of Parent or any of its Subsidiaries (except that the Company and Stockholder or its Representatives may affect or pursue an acquisition of any assets offered for sale by Parent or any of its Subsidiaries, or );
(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Parent or any of its Subsidiaries; or
(iv) any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A promulgated by the proxy rules of the CommissionSEC) or written consents with respect to vote any Voting Stock voting securities of the Company;
(d) initiate, make Parent or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act of its Subsidiaries from any holder of any voting securities of Parent or otherwise, or, except as expressly contemplated by this Agreement or the Certificate any of Designations, otherwise seek the election or appointment toits Subsidiaries, or representation onotherwise advise, assist or the nomination of encourage any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of any Voting Stock that is inconsistent with the voting obligations securities of the Investor hereunder;
(f) except as expressly contemplated by this Agreement Parent or the Certificate any of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gb) form, join join, become a member of, or in any way participate in or engage in negotiations, arrangements, understandings or discussions regarding, a “group” (within the meaning of Section 13(dRule 13d-5(b)(l) of promulgated under the Exchange Act) with respect to any voting or other securities of Parent or any of its Subsidiaries or any securities convertible into or exercisable or exchangeable for any voting or other securities of Parent or any of its Subsidiaries or otherwise act in concert with any Person in respect of any such securities;
(c) call, request, or seek to have called any meeting of the Company involving stockholders of Parent or execute any written consent in lieu of a meeting of holders of any securities of Parent;
(d) otherwise seek, or propose to seek, representation on, or to control or influence, or to propose to control or influence, the Parent Board or the management, shareholders or policies of Parent or any of its Subsidiaries, or take any action to prevent or challenge any business combination or similar transaction to which Parent or any of its Subsidiaries is a party;
(e) request that Parent or any of its Representatives amend or waive any provisions of this Section 3.3, or make any public announcement with respect to the restrictions of this Section 3.3 or any plan, arrangement or intention with respect to any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly restricted by this Section 3.3 or take any action which would action, or would reasonably be expected make or permit its Representatives to result in the Company having take any action, that might force Parent or any of its Subsidiaries to make a public announcement or other public disclosure regarding any of the actions described under clauses types of matters set forth in clause (a), (b), (c) through or (fd) hereofabove; or
(if) otherwise take advise, assist, or cause knowingly encourage, or direct any action inconsistent Person to advise, assist or knowingly encourage any other persons with respect to any of the foregoing provisions of conduct prohibited by this Section 10.1.
10.23.3. Notwithstanding the provisions foregoing, the parties agree and acknowledge that (i) the Stockholder may vote its shares of Section 10.1, if Parent Common Stock at any time the percentage meeting of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result holders of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Parent Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance in its sole discretion, and (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (Iii) nothing in this Agreement Section 3.3 shall prohibit apply to potential or restrict actual purchases or sales of oil and/or gas assets between the Investor or Stockholder (or, for the avoidance of doubt, any of its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential InformationAffiliates), on the one hand, and Parent or any of its behalfSubsidiaries, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processhand.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Voting and Support Agreement (Chesapeake Energy Corp), Voting and Support Agreement (WildHorse Resource Development Corp)
Standstill. 10.1. From The Stockholders hereby agree that, from and after the Closing, without the prior consent of the Boarddate hereof, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, Stockholders and (y) a Pending COC Event, the Investor their Affiliates shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly, unless (i) specifically requested by Parent or (ii) expressly contemplated by the terms of this Agreement or the Merger Agreement:
(a) sell, transfer, tender, pledge, encumber, assign or otherwise dispose of (collectively, 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;
(b) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock any securities or direct or indirect rights or options to acquire Voting StockCommon Stock or any other securities of the Company, or any assets of the Company or any subsidiary or division thereof;
(bc) enter into a short ofmake, or trade in any way participate in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction any "solicitation" of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote (including by consent), or written consents seek to advise or influence any person or entity with respect to the voting of, any Voting Stock voting securities of the CompanyCompany (including, without limitation, by making publicly known your position on any matter presented to stockholders), other than to recommend that stockholders of the Company vote in favor of the Merger and the Merger Agreement;
(d) initiate, make or submit to the Company any stockholder proposal, whether made pursuant to proposal under Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the BoardAct;
(e) deposit make any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement public announcement with respect to to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunderCompany or its securities or assets;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “"group” " (within the meaning of as defined in Section 13(d13(d)(3) of under the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent connection with any of the foregoing provisions of this Section 10.1.foregoing;
10.2. Notwithstanding the provisions of Section 10.1, if at (g) seek in any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromway, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to have any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes provision of this Section 103.1 amended, a “Pending COC Event” meansmodified or waived; or
(h) otherwise take, directly or indirectly, any actions with the earlier purpose or effect of (a) avoiding or circumventing any provision of this Section 3.1 or which could reasonably be expected to have the date on which effect of preventing, impeding, interfering with or adversely affecting the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders consummation of the Company within such time period, (b) the execution transactions contemplated by the Company of a definitive agreement which if consummated will result in a Change of Control, Merger Agreement or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlits ability to perform its obligations under this Agreement.
Appears in 2 contracts
Sources: Voting Agreement (Integrated Defense Technologies Inc), Voting Agreement (Integrated Defense Technologies Inc)
Standstill. 10.1. (a) From and after the Closing, without the prior consent of the Board, the Investor hereby agrees that Effective Date until such time as both (i) the earlier to occur of Investor Ownership Threshold is no longer satisfied and (xii) it ceases to Beneficially Own 5% there is no longer an Investor Director serving as a member of the Total Voting Power, and Board (y) a Pending COC Eventthe “Standstill Period”), the Investor shall not, and shall cause its directors, officers, employees, representatives subsidiaries and Affiliates controlled by (but not under common control with) the Investor Representatives acting on its and any other Affiliates that have received Company Confidential Information, its respective subsidiaries’ behalf not to, on directly or indirectly (including through any arrangements with a third party):
(i) except for Equity Securities of the Company received by way of stock splits, stock dividends, reclassifications, recapitalizations or other distributions by the Company in respect of its behalfCommon Stock, and Equity Securities purchased pursuant to Section 4 or acquired as a result of any conversion of Preferred Stock or the exercise of any rights under the Framework Agreement, (x) acquire, agree to acquire, propose or offer to acquire (including through the acquisition of Beneficial Ownership) (directly or indirectly:
(a) , by purchase or otherwise) any Equity Securities of the Company; provided that this clause (i) shall not prohibit acquisitions of Common Stock, acquireif after giving effect to such transaction, agree the Investor Ownership Threshold is equal to or less than 10%, or (y) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire (directly or offer to acquire Voting Stock indirectly, by purchase or direct or indirect rights or options to acquire Voting Stockotherwise) any Equity Securities of the Company;
(bii) enter into a short ofmake, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toin any way participate, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies,” “consents” or “authorizations” to vote (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment toSEC), or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of any shares of Voting Stock that is inconsistent (other than in each case (x) the Investor and its Affiliates, (y) in accordance with and consistent with the voting obligations recommendation of the Investor hereunderBoard or (z) with respect to the election of a Nominee);
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(giii) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d13(d)(3) of the Exchange Act, for the purpose of voting, acquiring, holding, or disposing of, any Voting Stock;
(iv) submit to the Board a proposal for or offer of, with or without conditions, any acquisition of, or merger, recapitalization, reorganization, business combination or other extraordinary transaction involving, the Company or any subsidiary thereof or any of its or their respective securities or assets, or make any public announcement with respect to such proposal or offer, in each case, except a nonpublic proposal or offer to the Company that would not reasonably be expected to require the Company to make a public announcement with respect thereto;
(v) request the Company or any of its subsidiaries directly or indirectly, to amend or waive any provision of this Agreement, in each case, except a nonpublic request to the Company that would not reasonably be expected to require the Company to make a public announcement with respect thereto;
(vi) contest the validity or enforceability of any provision contained in this Section 6;
(vii) call, or seek to call, a meeting of the stockholders of the Company or initiate any stockholder proposal, or initiate or propose any action by written consent, in each case for action by the stockholders of the Company (other than, in each case, with respect to the Company involving election of a Nominee in accordance with the terms hereof);(viii) nominate candidates for election to the Board or otherwise seek representation on the Board (except as expressly set forth in this Agreement) or seek the removal of any member of the actions items described under clauses Board (a) through (f) hereof;except for the Investor Director); or
(hix) knowingly take any action which would or that would reasonably be expected to result in require the Company having to make a public announcement regarding the possibility of a transaction or any of the actions other matter described under clauses (a) through (f) hereof; orin this Section 6.
(ib) otherwise take or cause any action inconsistent with any of the foregoing provisions of Nothing in this Agreement, including this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.16, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire the voting (as a director) or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned other actions taken by the Investor Director in his or its permitted assigns and transferees, (iii) disclosing her capacity as a member of the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is Board in a manner consistent with the terms of this Agreement, his or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and her fiduciary duties as directors a member of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of ControlBoard, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after Investor or any of its public announcement subsidiaries or commencement Representatives from exercising any of its, his, or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of her rights or remedies under or in connection with any Contract with the Company within such time periodor any of its Affiliates, (b) including the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlFramework Agreement.
Appears in 2 contracts
Sources: Investment Agreement (RingCentral, Inc.), Investment Agreement (Avaya Holdings Corp.)
Standstill. 10.1. From and after the Closing, without the prior consent Each of the BoardSeller, BCC and ▇▇. ▇▇▇▇▇▇▇ agrees that, during the Investor hereby agrees that until such time as period beginning on the earlier to occur of date hereof and ending on the fourth (x4th) it ceases to Beneficially Own 5% anniversary of the Total Voting Powerdate hereof (the “Restricted Period”), and (y) a Pending COC Event, the Investor shall it or he will not, and shall it or he will cause each of such person’s Affiliates (as defined in Rule 12b-2 (“Rule 12b-2”) promulgated by the Securities and Exchange Commission (the “SEC”) under the Exchange Act), including, without limitation, agents or other persons acting on its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, or his behalf not to, on and will use commercially reasonable efforts to cause its behalf, directly or indirectlyhis respective Associates (as defined in Rule 12b-2) not to:
(a) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, by purchase or otherwise, acquire, agree to acquire beneficial ownership of any (i) interests in any of the Purchaser’s indebtedness or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock(ii) capital stock of the Purchaser;
(b) enter into induce or encourage any person to submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration at a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction meeting of the Common Stock following the conclusion shareholders of the period set forth in Section 9Purchaser;
(c) advise, encourage or influence any person with respect to voting any shares of capital stock of the Purchaser with respect to any matter;
(d) seek to control or influence the governance or policies of the Purchaser;
(e) effect or seekseek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way knowingly assist, assist or knowingly facilitate any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, in (i) any acquisition of any Voting Stock material assets or rights businesses of the Purchaser or options to acquire any Voting Stockof its subsidiaries, (ii) any tender offer or exchange offer, merger merger, acquisition or other business combination involving the Company, Purchaser or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, subsidiaries or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) recapitalization, restructuring, liquidation, dissolution or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement other extraordinary transaction with respect to the voting Purchaser or any of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunderits subsidiaries;
(f) except as expressly contemplated by make any request, submit any proposal or disclose any intent to seek or obtain any waiver, consent under, or any amendment of, any provision of this Agreement other than through non-public communications with the Purchaser that would not be reasonably determined to trigger public disclosure obligations for any Party or the Certificate any Affiliate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiariesany Party;
(g) formenter into any arrangements, join understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person for the purpose of engaging, or offering or proposing to engage, in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;foregoing; or
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause or induce others to take any action inconsistent with any of the foregoing provisions of this Section 10.1foregoing.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Air T Inc), Securities Purchase Agreement (Biglari Capital Corp.)
Standstill. 10.1. From (a) During the period beginning on the date of this Agreement and after ending on the ClosingStandstill Termination Date, without except as permitted by the prior consent Board in its sole discretion subject to clause (vii) below), at any time the Investor and its Affiliates and Related Persons collectively beneficially own nine and nine-tenths percent (9.9%) or more of the Board, issued and outstanding Shares (the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event“Standstill Effectiveness Period”), the Investor shall not, and shall cause its directors, officers, employees, representatives controlled Affiliates and Affiliates controlled by (but not under common control with) shall direct the Investor and any other Affiliates that have received Company Confidential Information, Related Persons not to, on its behalf, directly and shall not facilitate or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor encourage any other Person to, directly or indirectly, engage in a collared hedging transaction any manner:
(i) subject to Section 3(b), effect any acquisition of ownership (including by operation of law and including the acquisition of the right to vote or direct the voting of any Common Stock following Shares) of Common Shares or securities exercisable, exchangeable or convertible into Common Shares; provided, that this clause (i) shall not limit or otherwise restrict (subject to Section 5 and any restrictions on transfer applicable to the conclusion Investor, its Affiliates and Related Persons in any other agreement or instrument) the ability of the period set forth in Section 9;Investor or any of its Affiliates or Related Persons to dispose of any securities of the Company.
(cii) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause otherwise participate in, any tender offer, take-over bid, amalgamation, plan of arrangement, merger, exchange offer, consolidation, business combination, recapitalization, restructuring or participate other similar transaction involving the Company or any of its Subsidiaries (or any of their respective assets) or take any action which would, or would reasonably be expected to, result in or require public disclosure regarding any of the types of matters set forth in this clause (ii); provided, that this clause (ii) shall not limit or otherwise restrict the ability of the Investor or any of its Affiliates or Related Persons to (A) tender or sell securities of the Company in any way knowingly assist, such transaction or knowingly facilitate (B) vote Common Shares or Preferred Shares beneficially owned by the Investor or any other Person to of its Affiliates or Related Persons in connection with any such transaction;
(iii) (A) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the CommissionSEC) to vote for, or written consents seek to advise or influence any Person in connection with respect the voting of, the election of directors not nominated by the Board, (B) solicit, encourage or facilitate, directly or indirectly, any third party to engage in any Voting Stock such solicitation for the election of directors not nominated by the Board, (C) make any public statement (or statement to another shareholder of the Company or statement which would, or would reasonably be expected to, result in or require public disclosure) in support of any such third-party solicitation for the election of directors not nominated by the Board or (D) seek or propose the election or appointment of any person to, or representation on, or nominate or propose the nomination of any candidate to, the Board, or seek or propose the removal of any member of the Board;
(iv) (A) call, request the calling of, or otherwise seek or assist in the calling of a meeting of the shareholders of the Company or (B) seek, propose or submit, any proposal or matter of business (whether binding or not) to be considered or voted upon at a meeting of the shareholders of the Company;
(d) initiate, make or submit any stockholder proposal, whether made including pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tosubmit, or representation onparticipate in, or the nomination of any candidate to, the Board“shareholder access” proposal;
(ev) deposit any Voting Stock in any voting trust publicly seek or subject any Voting Stock propose to any arrangement influence or agreement with respect to control the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board management or policies of the Company (or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would would, or would reasonably be expected to to, result in the Company having to make a or require public announcement disclosure regarding any of the actions described under clauses types of matters set forth in this clause (a) through (f) hereof; orv));
(ivi) otherwise take have or cause disclose any action intention, plan or arrangement prohibited by, or inconsistent with any of the foregoing provisions of this Section 10.1.or advise, assist or encourage or enter into discussions, negotiations, agreements or arrangements with any other Persons in connection with the foregoing;
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”vii) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of request that the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromemployees or agents), directly or indirectly, amend or waive any provision of this Section 3(a) (including this sentence), in a manner that would, or would reasonably be expected to, result in or require public disclosure of such request; or
(viii) agree or commit to any of the foregoing; provided, that nothing in clause (i) acquiring, agreeing to acquire or clause (ii) shall prohibit the Investor or any of its Affiliates or Related Persons from acquiring or offering to acquire Voting Stock acquire, directly or direct or indirect rights or options to acquire Voting Stock indirectly, securities of any Person who beneficially owns Shares so long as (vi) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion such Person owns less than 5% of the outstanding Common Shares in accordance with the Certificate and such Common Shares constitute less than 20% of Designations, (x) pursuant to any dividends such Person’s assets or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following such Person is a passive institutional investor or other passive investment vehicle or entity, with the conclusion investment in the underlying Common Shares being part of a portfolio managed on behalf of all investors in such investment.
(b) Notwithstanding the period prohibition set forth in Section 93(a)(i), consummating, soliciting, offering, seeking to effect in the event that the Investor’s and negotiating with any Person regarding a transfer its Affiliates’ and Related Persons’ collective beneficial ownership of the capital stock Fully Diluted Equity Outstanding decreases below the Maximum Percentage Ownership after the date of the Company Beneficially Owned this Agreement by reason of (x) a sale of Shares by the Investor or any of its permitted assigns and transferees, Affiliates or Related Persons to a third party or (iiiy) disclosing an issuance or sale of Shares by the Company in which the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention and its Affiliates’ and Related Persons’ collective beneficial ownership is consistent with the terms of this Agreementdiluted, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit then the Investor and its Affiliates shall be permitted to participate acquire Common Shares in one or more transactions in an amount such process on that their collective beneficial ownership would not exceed the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processMaximum Percentage Ownership.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Investor Rights Agreement (Third Point Reinsurance Ltd.), Investor Rights Agreement (Third Point Reinsurance Ltd.)
Standstill. 10.1. From Each of the K Capital Parties jointly and after the Closingseverally agrees that, without the prior written consent of the Board, the Investor hereby agrees that until such time as the earlier to occur Board of (x) it ceases to Beneficially Own 5% Directors of the Total Voting PowerCompany expressed in a resolution adopted by a majority of the directors, and (y) a Pending COC Event, the Investor it shall not, and shall will cause each of its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction by purchase or otherwise, during the period from the date hereof through the tenth anniversary of the Common Stock following date of this Agreement:
(a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the conclusion Securities Exchange Act of 1934, as amended (the "Exchange Act")) of any of the period set forth in Section 9;
assets or businesses of the Company or any securities of the Company (cincluding, without limitation, any debt, equity or convertible securities) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stocksuch ownership from any Person;
(b) make, (ii) or in any tender way participate in, directly or exchange offer, merger or other business combination involving the Companyindirectly, any "solicitation" of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or written consents of shareholders with respect to, securities of the Company, or seek to advise, encourage or influence in any manner whatsoever any Person with respect to the voting of any securities of the Company;
(c) form, join, or in any way participate in a "group" (within the meaning of Section 13d(3) of the Exchange Act) with respect to any Voting Stock voting securities of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment toarrange, or representation onin any way participate in, or any financing for the nomination purchase of any candidate to, securities or assets of the BoardCompany or securities convertible or exchangeable into any securities or assets of the Company;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, whether alone or in concert with others, to seek representation on to propose (with or without conditions) to control the Company, or any of its stockholders, any merger, consolidation, business combination, tender or exchange offer, restructuring, recapitalization, liquidation or similar transaction to or with any other Person or otherwise act, whether alone or in concert with others, to seek to control, change or influence the management, Board shareholders, board of directors, or policies of the Company;
(f) solicit, negotiate with, or provide any information to, any Person with respect to a merger, consolidation, business combination, tender or exchange offer, recapitalization, or liquidation of the Company or its Subsidiariesany other acquisition of the Company, any acquisition of securities or any of the assets of the Company or any other similar transaction;
(g) form, join call or in any way participate in a “group” (within the meaning of Section 13(d) calling, any special meeting of the Exchange Actstockholders of the Company, or nominate any person for election as a director of the Company, or make any proposal to be considered and/or voted upon at any meeting of the stockholders of the Company, or induce or attempt to induce any other person to initiate any stockholder proposal or director nomination, or discuss or communicate with respect to any matter related to the business or affairs of the Company with the stockholders of the Company;
(h) execute any written consent as shareholder with respect to the Company involving any of the actions items described under clauses (a) through (f) hereofor its securities;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take announce an intention to, or cause enter into any discussion, negotiations, arrangements or understandings with any third party with respect to, any of the foregoing matters;
(j) disclose any intention, plan or arrangement inconsistent with any of the foregoing provisions;
(k) advise, assist, encourage or participate with any other Person in connection with any action inconsistent with any of the foregoing provisions of this Section 10.1.provisions; or
10.2. Notwithstanding the provisions of Section 10.1(l) publicly disclose any request to amend, if at waive or terminate any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 provision of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Settlement Agreement (Gyrodyne Co of America Inc), Settlement Agreement (K Capital Partners LLC)
Standstill. 10.1. From and after the Closing, without the prior consent of the Board, the Investor Recipient hereby agrees that until such time as that, for a period of two years from the earlier to occur of date hereof, Recipient and its Affiliates will not (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause neither Recipient nor its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short ofwill assist, or trade inprovide or arrange financing to or for, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor others in order to), directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, acting alone or in concert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) acquire or agree, offer, seek or propose to seek representation on acquire (or request permission to control or influence the managementdo so) ownership (including, Board or policies of the Company or its Subsidiaries;
(g) formbut not limited to, join or beneficial ownership as defined in any way participate in a “group” (within the meaning of Section 13(d) of Rule 13d-3 under the Exchange Act) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or any option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities or otherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain representation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies or consents with respect to the Company involving any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of Protection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the actions items described under clauses foregoing; (av) through advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; (fvi) hereof;
propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Protection One or any of its subsidiaries; (hvii) knowingly disclose any intention, plan or arrangement inconsistent with any of the foregoing; or (viii) seek to have Protection One amend or waive any provision of this Section 6. Recipient agrees to advise Protection One promptly of any inquiry or proposal made to it with respect to any of the foregoing, unless Recipient declines to discuss such inquiry or proposal with the party making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 6, neither it nor any of its Affiliates will, without the written consent of Protection One, take any initiative or other action which would with respect to Protection One or would any of the subsidiaries of Protection One that is reasonably be expected likely to result in the Company having require Protection One to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take such initiative or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company)action, (ii) following the conclusion any of the period set forth activities, events or circumstances referred to in the preceding sentences of this Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees6, (iii) disclosing the Investor’s intention with respect to the voting possibility of a Transaction or any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, similar transaction between Protection One and any particular party or (iv) from exercising the possibility of Recipient or any other person acquiring control of Protection One, whether by means of a business combination or otherwise. Recipient represents to Protection One that neither it nor any of its rights related to Affiliates (other than individuals in their individual accounts and in de minimis amounts) owns (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Preferred Directors in the Certificate Exchange Act) any securities of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties Protection One as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processdate hereof.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Confidentiality Agreement (Protection One Inc), Confidentiality Agreement (Protection Acquisition Sub, Inc.)
Standstill. 10.1. (a) From and after the Closing, without Closing Date until the prior consent of the BoardStandstill Termination Date, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall Investors will not, and shall will cause its directorsAbry Partners II, officersLLC and Abry Partners II, employees, representatives and LLC’s controlled Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectlydo any of the following:
(ai) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of proxies or consents or become a “proxiesparticipant” in a “solicitation” (as such terms are used defined in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 Regulation 14A under the Exchange Act Act) of proxies or otherwiseconsents (including, orwithout limitation, except as expressly contemplated by this Agreement or any solicitation of consents that seeks to call a special meeting of stockholders of Parent) to vote any voting securities of the Certificate Parent, in each case inconsistent with the recommendations of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Parent Board;
(eii) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement grant a proxy with respect to the voting of any Voting Stock that is securities of Parent to any Person other than the Parent Board and executive officers of Parent;
(iii) seek representation on the Parent Board, submit nominations for the election or removal of any directors of Parent, or seek to remove any directors of Parent (in each case, other than with respect to, or in their capacity as, the Series A Directors in accordance with the Parent Charter);
(iv) initiate, propose, submit, encourage or otherwise solicit stockholders of Parent for the approval of one or more stockholder proposals in a manner inconsistent with the voting obligations recommendations of the Investor hereunderParent Board;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gv) form, join or in any way participate in a “group” (within the meaning of Section 13(d13(d)(3) of the Exchange Act) ), with respect to any voting securities of Parent, for the Company involving purpose of acquiring, holding, voting or disposing of any voting securities of Parent (in each case other than solely among the Investors and their Affiliates);
(vi) advise, assist, knowingly encourage or influence, or direct any Person to do, or to advise, assist, knowingly encourage or influence, or direct any other Person to do, any of the actions items described under clauses following: (aA) through any of the foregoing or otherwise circumventing any of the limitations of this Section or (fB) hereof;voting any voting securities of Parent in a manner inconsistent with the recommendations of the Parent Board; or
(hvii) knowingly take make any action request or submit any proposal to waive, terminate or amend the terms of this Section 7.16 other than through non-public communications with Parent.
(b) Notwithstanding the foregoing, nothing in this Section 7.16 will limit: (i) the Investors’ ability to (1) either vote for, vote against or abstain from voting on, any proposal submitted for a vote of stockholders which is not initiated or conducted in violation of Section 7.16(a), (2) privately make and submit to the Parent and/or the Parent Board any proposal that is intended by the Investors to be made and submitted on a non-publicly disclosed or announced basis (and would or would not reasonably be expected to result in the Company having to make a require public announcement regarding disclosure by any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the CompanyPerson), (3) exercise rights as a holder of Series A Preferred Stock under the Parent Charter or any other Transaction Document or (4) in response to an unsolicited inquiry or proposal from any Person in respect of any action prohibited, or reasonably likely to be prohibited, by Section 7.16(a), to ascertain facts from the Person making such inquiry or proposal for the sole purpose of informing themselves about such inquiry or proposal and the Person that made it and to refer such Person to this Section 7.16 and to limit its conversation or other communication exclusively to such referral and such ascertaining of facts; (ii) following the conclusion any Series A Director in taking any action as a member of the period set forth Parent Board, including, without limitation, voting or otherwise taking any action in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding respect of his or her legal duties or otherwise acting in his or her capacity as a transfer member of the capital stock of the Company Beneficially Owned by the Investor Parent Board; or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect Investors’ ability to the voting dispose of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors securities of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of ControlParent, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processeither publicly or privately.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Investment and Transaction Agreement (Id Systems Inc), Investment and Transaction Agreement (Pointer Telocation LTD)
Standstill. 10.1. From and after (a) Each Investor agrees that, from the Closingdate of this Agreement until the expiration of the Standstill Period, without the prior written consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% two-thirds of the Total Voting Powermembers of the Board specifically expressed in a written resolution, neither it nor any of its Related Persons (as defined below) will, and (y) a Pending COC Event, the Investor shall not, and shall it will cause each of its directors, officers, employees, representatives and Affiliates controlled by (but Related Persons not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage alone or with others, including, without limitation, Acting in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
Concert (cas defined below) effect or seekwith others, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, manner:
(i) publicly announce or otherwise publicly disclose an intent to propose or enter into or agree to enter into, singly or with any other person, directly or indirectly, (x) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Company or any of its subsidiaries, (y) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (z) any form of tender or exchange offer for the Common Stock, whether or not such transaction involves a Change of Control of the Company; provided, however, that this clause (i) shall not preclude the tender by any Investor of any Voting Stock or rights or options to acquire any Voting Stock, (ii) securities of the Company into any tender or exchange offeroffer not made, merger financed, or other business combination otherwise supported by the Investor Group or any Affiliate or Associate thereof or preclude the ability of any Investor to vote its shares of Common Stock for or against any transaction involving the Company, ’s securities where the transaction is not proposed or sponsored by any Investor or any Affiliate or Associate thereof;
(ii) engage in any solicitation of its Subsidiaries proxies or assets written consents to vote any voting securities of the Company Company, or its Subsidiaries constituting a significant portion conduct any non-binding referendum with respect to any voting securities of the consolidated assets of the Company and its SubsidiariesCompany, or (iiiengage in any solicitation activities on behalf of any person, or conduct any exempt solicitation, including under Rule 14a-2(b)(1) under the Exchange Act, or assist or participate in any “solicitation” other way, directly or indirectly, in any solicitation of “proxies” (as such terms are used in the proxy rules of the Commission) proxies or written consents with respect to any Voting Stock voting securities of the Company, or otherwise take any action that could cause any Investor to be deemed a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1, respectively, under the Exchange Act, to vote any securities of the Company in opposition to any recommendation or proposal of the Board;
(iii) except as expressly provided in Section 4 of this Agreement, 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 additional securities (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company or any rights decoupled from the underlying securities of the Company;
(div) initiateadvise, make encourage or submit influence any stockholder proposalperson with respect to the voting of (or execution of a proxy or written consent in respect of) or disposition of any securities of the Company;
(v) provide investment advice with respect to the Company’s securities to any person, whether made or provide logistical advice or assistance to any person engaged in a contested solicitation of proxies from the Company’s stockholders in connection with a meeting of stockholders of the Company or the solicitation of written consents from the Company’s stockholders;
(vi) other than in open-market broker-sale transactions conducted pursuant to Rule 14a-8 under 144 of the Exchange Securities Act of 1933, as amended, where the identity of the purchaser is not known or in underwritten widely dispersed public offerings, sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, orany securities (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company or any rights decoupled from the underlying securities held by the Investors or their Affiliates or Associates to any person or entity not a party to this Agreement (a “Third Party”) that would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any, beneficial, economic or other ownership interest representing in the aggregate more than 4.99% of the shares of Common Stock outstanding at such time;
(vii) sell, offer or agree to sell directly or indirectly, through swap or hedging transactions or otherwise, any securities (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company or any rights decoupled from the underlying securities held by the Investors to any Affiliate or Associate of the Investors not a party to this Agreement;
(viii) engage in any short sale with respect to any security (other than a broad-based market basket or index) that includes, relates to, or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(ix) except as otherwise expressly set forth in this Agreement, take any action in support of or make any proposal or request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, governance, compensation, policies, strategic direction, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Amended and Restated Certificate of Incorporation or the Company’s Amended and Restated Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange, or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(x) 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 Company’s Amended and Restated Certificate of Incorporation or the Company’s Amended and Restated Bylaws, including, but not limited to, a “town hall meeting;”
(xi) seek, alone or in concert with others, representation on the Board, except as expressly contemplated permitted by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the BoardAgreement;
(exii) initiate, encourage or participate in any “vote no,” “withhold” or similar campaign relating to the Company;
(xiii) deposit any Voting Common Stock in any voting trust or subject any Voting Common Stock to any arrangement or agreement with respect to the voting of any Voting Common Stock that is inconsistent with (other than any such voting trust, arrangement or agreement solely among the voting obligations members of the Investor hereunderGroup that is otherwise in accordance with this Agreement);
(fxiv) except as expressly contemplated by this Agreement seek, or the Certificate of Designations, otherwise act, alone or in concert with othersencourage any person, to seek representation on submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to control the Company or influence seek, encourage or take any other action with respect to the management, Board election or policies removal of any directors of the Company or its Subsidiarieswith respect to the submission of any stockholder proposals (including any submission of stockholder proposals pursuant to Rule 14a-8 under the Exchange Act);
(gxv) form, join or in any other way participate in a any “group” (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect to the Common Stock (other than the Investor Group);
(xvi) demand a copy of the Company’s list of stockholders or its other books and records, whether pursuant to Section 220 of the DGCL or pursuant to any other statutory right or otherwise;
(xvii) institute, solicit or join, as a party, any litigation, arbitration or other proceeding (including any derivative action) against the Company involving or any of its future, current or former directors or officers or employees; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Investor from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against an Investor, or (C) exercising statutory dissenter’s, appraisal or similar rights under the DGCL; provided, further, that the foregoing shall also not prevent the Investors from responding to or complying with a validly issued legal process in connection with litigation that it did not initiate, invite, facilitate or encourage, except as otherwise permitted in this Section 3(a)(xvii);
(xviii) engage any private investigations firm or other person to investigate any of the actions items described under clauses (a) through (f) hereofCompany’s directors or officers;
(hxix) knowingly take any action action, directly or indirectly, to interfere with any employment, consulting, compensation, indemnification, separation or other agreements, arrangements or understandings, whether written or oral, formal or informal, between the Company and any current or former director or officer of the Company, or which would are intended to benefit any current or would former director or officer of the Company, including, but not limited to, any provisions of the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws intended to indemnify, provide advancement of expenses or limit the liability of, any current or former director or officer of the Company;
(xx) disclose publicly or privately, in a manner that could reasonably be expected to result in become public, any intent, purpose, plan, or proposal with respect to the Company having Board, the Company, its management, policies, or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xxi) enter into any negotiations, agreements, or understandings with any person or entity with respect to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) foregoing, or advise, assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing;
(xxii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party;
(xxiii) take any action challenging the validity or enforceability of any of the provisions of this Section 3 or publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document with the SEC or any other governmental agency or any disclosure to any journalist, member of the media, or securities analyst) of, any intent, purpose, plan or proposal to either (A) obtain any waiver or consent under, or any amendment of, any provision of this Agreement, or (B) take any action challenging the validity or enforceability of any provisions of this Section 3; or
(xxiv) otherwise take, or solicit, cause or encourage others to take, any action inconsistent with the foregoing.
(b) Notwithstanding the foregoing, the provisions of this Section 3 shall not limit in any respect each of the New Directors from taking actions in good faith solely in his or her capacity as directors of the Company, recognizing that such actions are subject to 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 or Associates shall seek to do indirectly through either of the New Directors anything that would be prohibited if done by any of the Investors or their Affiliates and Associates directly).
(c) The foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by 3 shall not prohibit the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor Group or its directors, officers, partners, employees, representatives and Affiliates controlled by (but not under common control with) members, representatives, or agents, in each case acting in such capacity, from engaging in private discussions with the Company concerning the Investor Group’s views or suggestions concerning the Company so long as such private discussions are not intended to, and would not be reasonably expected to, trigger public disclosure obligations for any other Affiliates that have received Company Confidential Information, on its behalf, from, directly party or indirectly, run afoul of any of the provisions of Section 3(a).
(id) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to As of the issuance of Shares contemplated by Section 1.1 date of this Agreement, (wi) pursuant to the conversion none of the Shares Investors or its Affiliates and Associates are engaged in accordance any discussions or negotiations with any person concerning the Certificate acquisition of Designations, economic ownership of any securities (xincluding common and preferred equity interests and debt that is convertible into any equity interests) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power Company or any rights decoupled from the underlying securities of the Company), (ii) following the conclusion none of the period set forth in Section 9Investors or its Affiliates and Associates have any agreements, consummatingarrangements, solicitingor understandings, offeringwritten or oral, seeking to effect formal or informal, and negotiating whether or not legally enforceable, with any Person regarding a transfer person concerning the acquisition of the capital stock economic ownership of any securities (including common and preferred equity interests and debt that is convertible into any equity interests) of the Company Beneficially Owned by or any rights decoupled from the Investor or its permitted assigns underlying securities of the Company, and transferees, (iii) disclosing none of the Investor’s intention Investors or its Affiliates and Associates have any actual and non-public knowledge that any other stockholders of the Company, including any stockholders that have a Schedule 13D currently on file with the SEC with respect to securities of the voting Company, have any present or future intention of taking any Voting Stock Beneficially Owned actions that if taken by it so long as such voting intention is consistent with the Investors would violate any of the terms of this Agreement. The Investors and its Affiliates and Associates agree to refrain from taking any actions during the Standstill Period to intentionally encourage other stockholders of the Company or any other persons to engage in any of the actions referred to in the previous sentence.
(e) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; the terms “economic owner” and “economically own” shall have the same meanings as “beneficial owner” and “beneficially own,” except that a person will also be deemed to economically own and to be the economic owner of (i) all shares of Common Stock that such person has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (ii) all shares of Common Stock in which such person has any economic interest, including, without limitation, pursuant to a cash-settled call option or other derivative security, contract, or (iv) from exercising its rights instrument in any way related to the Preferred Directors price of shares of Common Stock; the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, or other entity of any kind or nature; the term “Related Person” shall mean, as to any person, any Affiliates or Associates of such person and any other persons under the control of such person or such person’s Affiliates or Associates; and the term “business day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in the Certificate State of Designations and this Agreement and the exercise Alaska are authorized or obligated to be closed by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4applicable law. For purposes of this Section 10Agreement, a person shall be deemed to be “Pending COC EventActing in Concert” meanswith another person if such person knowingly acts (whether or not pursuant to an express written or oral agreement, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender arrangement or exchange offer whichunderstanding), if consummated, would result in a Change of Controlconcert or in parallel with such other person, or (ii) fails to recommend that stockholders reject towards a common goal with such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.other per
Appears in 2 contracts
Sources: Cooperation Agreement, Cooperation Agreement (Alaska Communications Systems Group Inc)
Standstill. 10.1. From Subject to Section 2.2 through Section 2.4, Priceline covenants and after agrees with the ClosingCompany that, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor Priceline shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but Subsidiaries not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage alone or in a collared hedging transaction concert with others, without the prior written consent of the Common Stock following the conclusion Company, take any of the period actions set forth in Section 9;below (clauses (a) through (f) below, collectively, the “Priceline Standstill”):
(ca) effect or seekeffect, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate vote in favor of or authorize, encourage or solicit any other Person to effect or seekeffect, offer or propose (whether publicly or otherwise) to effect or participate in, in (i) any acquisition of any Voting Stock Equity Securities (or beneficial ownership thereof) or material assets of the Company or any of its Subsidiaries, including rights or options to acquire any Voting Stocksuch ownership, (ii) any tender or exchange offer, merger merger, consolidation, amalgamation, scheme of arrangement, or other business combination involving the Company, Company or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries;
(b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used defined in the proxy rules of the CommissionSEC) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tovote, or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of of, any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies securities of the Company or any of its Subsidiaries;
(gc) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d13(d)(3) of the Exchange Act) in connection with any action contemplated by any of the foregoing;
(d) subject to the rights of Priceline and any of its Subsidiaries pursuant to this Agreement, the Transaction Agreements and the Marketing Agreement, otherwise act to seek to control, influence or change the management, Board, governing instruments, shareholders, policies or affairs of the Company or any of its Subsidiaries;
(e) enter into any negotiations or arrangements with any third party, or finance any third party, with respect to the Company involving any of the actions items described under foregoing; or
(f) make any public disclosure inconsistent with clauses (a) through (f) hereof;
(h) knowingly e), or take any action which would or that would reasonably be expected to result in require the Company having to make a any public announcement regarding any of disclosure with respect to the actions described under matters set forth in clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”e).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Standstill Agreement, Standstill Agreement (Priceline Group Inc.)
Standstill. 10.1. From and after the Closing, without the prior consent (a) Subject to Section 20.11 of the BoardStrategic Alliance Agreement, the Investor hereby agrees that until such time as the earlier prior to occur of (x) it ceases to Beneficially Own 5% November 6, 2019, no member of the Total Voting Power, and (y) a Pending COC Event, the Investor Group shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its SubsidiariesCompany;
(gii) formenter into any joint venture, join securities lending or in option agreement, put or call, guarantee of loans, guarantee of profits or division of losses or profits, contract, arrangement or understanding with any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) Person with respect to any securities of the Company involving or any Subsidiary of the actions items described under clauses (a) through (f) hereofCompany;
(hiii) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Voting Stock during a Permitted Purchase Period if such purchase would result without the consent of the Board, except for the Warrant Shares and the Prior Warrant Shares;
(iv) solicit or participate in the Investor Parties Beneficially Owning 25% solicitation of proxies with respect to any Voting Stock, or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking seek to effect and negotiating with advise or influence any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention person with respect to the voting of any Voting Stock Beneficially Owned (other than as otherwise provided or contemplated by it so long this Agreement);
(v) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any third party with respect to the voting of such Voting Stock;
(vi) join a 13D Group (other than a group comprising solely of the Investor and its Affiliates) for the purpose of acquiring, holding, voting intention is consistent or disposing of Voting Stock or Non-Voting Convertible Securities;
(vii) take any action which would reasonably be expected to require the Company to make a public announcement regarding the possibility of a business combination or merger involving the Company or any of its Subsidiaries;
(viii) publicly disclose any intention, plan or arrangement inconsistent with the terms foregoing;
(ix) knowingly advise, assist or encourage any other Persons in connection with any of the foregoing; or
(x) request that the Company (or its respective directors, officers, affiliates, employees or agents), directly or indirectly, amend or waive any provision of this Section 4.9(a) in a manner that requires public disclosure of such request. Notwithstanding anything to the contrary in this Agreement, (i) the prohibitions in this Article IV shall not affect the Investor’s ability to hold the Shares, the Warrants, the Warrant Shares, the Prior Shares, the Prior Warrant or the Prior Warrant Shares, (ivii) the provisions of Section 4.8 and this Section 4.9 shall not prohibit any member of the Investor Group from exercising its rights related making or disclosing any offer or proposal on a confidential basis to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and Board (II) and, if the Board determines rejects that offer or proposal or fails to engage in enter onto a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating binding agreement with respect to such process.
10.4. For purposes of this Section 10offer or proposal within 30 days, making a “Pending COC Event” means, the earlier of (apublic announcement regarding such offer or proposal) the date on which the Board (i) publicly recommends in connection with a potential business combination or merger transaction with Investor that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of ControlControl of the Company, or (iiiii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make if a “stop-look-and-listen” communication to the stockholders Change of Control of the Company within such time periodhas occurred, then the provisions of Section 4.7, Section 4.8 and this Section 4.9 shall immediately terminate without further force or effect and the Company and the Investor shall be released from compliance therewith, (biv) if (x) the execution by Company has entered into any agreement to effect a Change of Control of the Company of or (y) a definitive agreement which third party has made a public offer or proposal (including a tender or exchange offer) or publicly announced an intention to make any such offer or proposal that would, if consummated will consummated, result in a Change of ControlControl of the Company, then, in each case in this clause (iv), the Company and the Investor shall be released from the provisions of Section 4.7, Section 4.8 and this Section 4.9 for the pendency of such agreement, offer or proposal, and (cv) the public announcement by provisions of Section 4.8 and this Section 4.9 shall not prohibit the Investor from disclosing the acquisition of the Shares, Warrants and Warrant Shares hereunder on Schedule 13D or Schedule 13G, provided that the Investor shall give the Company that it recommends any transaction that, if consummated, would result in a Change prior notice of Controlsuch filing.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Energous Corp), Securities Purchase Agreement (Dialog Semiconductor PLC)
Standstill. 10.1. From and after the Closing, without the prior consent (a) Each of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% members of the Total Voting Power▇▇▇▇▇▇▇▇▇ Group agrees that, and (y) a Pending COC Eventduring the Standstill Period, the Investor shall he or it will not, and shall he or it will cause each of such Person’s Affiliates and Associates and require other Persons acting on his or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, behalf not to, on its behalf, directly or indirectly:
(ai) by purchase or otherwise, acquire, agree offer to acquire or offer agree to acquire Voting Stock acquire, alone or direct in concert with any other individual or indirect rights entity, by purchase, tender offer, exchange offer, agreement or options business combination or any other manner, beneficial ownership of any securities of the Company; provided, however, that this restriction shall not apply to acquire Voting Stockany securities received by each of the Nominees pursuant to Section 8 of this Agreement;
(bii) enter into submit any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration at a short stockholder meeting or written consent in lieu thereof, or nominate any candidate for election to the Board or oppose the directors nominated by the Board, other than as expressly permitted by this Agreement;
(iii) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement other than as set forth in the Schedule 13D on the date hereof;
(iv) solicit proxies or written consents of shareholders, or otherwise conduct any nonbinding referendum with respect to Common Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote, or advise, encourage or influence any Person with respect to voting, any shares of Common Stock with respect to any matter, or become a “participant” in any contested “solicitation” for the election of directors with respect to the Company (as such terms are defined or used under the Exchange Act and the rules promulgated by the SEC thereunder), other than a “solicitation” or acting as a “participant” in support of all of the nominees of the Board at the 2011 Annual Meeting or, if applicable, the 2012 Annual Meeting as set forth in this Agreement;
(v) seek, in any capacity other than as a member of the Board, to call, or to request the calling of, a special meeting of the shareholders of the Company, or trade inseek to make, derivative securities representing or make, a shareholder proposal at any meeting of the right shareholders of the Company or make a request for a list of the Company’s shareholders (or otherwise induce, encourage or assist any other Person to vote initiate or economic benefits pursue such a proposal or request) or otherwise acting alone, or in concert with others, seek to control or influence the governance or policies of Voting Stock or rights or options to acquire Voting Stockthe Company, except as a member of the Board or otherwise as expressly permitted by this Agreement; provided, however, that the foregoing shall not prohibit the ▇▇▇▇▇▇▇▇▇ Group from (A) making statements contemplated by Rule 14a-1(l)(2)(iv)(B) under the Exchange Act to the extent necessary for applicable to holders of interests in Prentice Capital Management, LP and Prendel, LLC, and by Rule 14a-1(l)(2)(iv)(C) to the Investor toextent relating to the foregoing statements), directly or indirectly(B) engaging in discussions with other stockholders (so long as the ▇▇▇▇▇▇▇▇▇ Group does not initiate such discussions and such discussions are in compliance with the terms and conditions hereof) (clauses (1) and (2), engage in together, “Permitted Actions”) with respect to any transaction that has been publicly announced by the Company involving a collared hedging transaction recapitalization of the Common Stock following Company, or a material acquisition, disposition or sale of assets or a business by the conclusion Company, or a change of control of the period set forth Company, (C) voting as it sees fit on any matter other than with respect to the election of directors, or (D) privately contacting the Board or management of the Company to express his views regarding Company matters so long as such contact or communication (1) will not require or result in Section 9an amendment to or other public disclosure in connection with the Schedule 13D filed by the ▇▇▇▇▇▇▇▇▇ Group or any of its affiliates with respect to the Company and (2) does not unduly interfere with management’s duties and responsibilities or the day-to-day operation of the Company’s business and affairs;
(cvi) effect or seekseek to effect, in any capacity other than as a member of the Board (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third Person), offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way knowingly assist, assist or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or cause or participate in, in (iA) any acquisition of any Voting Stock material assets or rights businesses of the Company or options to acquire any Voting Stockof its subsidiaries, or any sale, lease, exchange, pledge, mortgage, or transfer thereof (iiincluding through any arrangement having substantially the same economic or other effect as a sale, lease, exchange, pledge, mortgage, or transfer or assets); (B) any tender offer or exchange offer, merger merger, acquisition or other business combination involving the Company, Company or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiariessubsidiaries, or (iiiC) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) recapitalization, restructuring, liquidation, dissolution or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) other extraordinary transaction with respect to the Company involving or any of its subsidiaries;
(vii) publicly disclose, or cause or facilitate the public disclosure (including, without limitation, the filing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) of, any intent, purpose, plan or proposal to obtain any waiver, or consent under, or any amendment of, any of the actions items described under clauses provisions of Sections 4 or 5 of this Agreement, or otherwise seek (ain any manner that would require public disclosure by any of the members of the ▇▇▇▇▇▇▇▇▇ Group or their Affiliates or Associates) through (f) hereofto obtain any waiver, consent under, or amendment of, any provision of this Agreement;
(hviii) knowingly take publicly disparage any action which would member of the Board or would reasonably be expected management of the Company; provided that this provision shall not apply to result compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure;
(ix) enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, cause, solicit, induce, assist or encourage, any other Person that engages, or offers or proposes to engage, in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofforegoing; or
(ix) otherwise take, cause, solicit, induce or assist others to take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2foregoing. Notwithstanding the provisions of this Section 10.15, if at any time the percentage members of the Total Voting Power Beneficially Owned by ▇▇▇▇▇▇▇▇▇ Group shall be entitled to acquire, from time to time, in one or more transactions in the Investor and its Affiliates (togetheropen market, in privately negotiated transactions or from the Company, additional securities of the Company, if, after giving effect to any acquisition of the additional securities, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain beneficially owned by the Total Voting Power ▇▇▇▇▇▇▇▇▇ Group would not exceed 14.0% of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions aggregate number of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result outstanding (as reported in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution most recent report filed by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) with the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlSEC containing such information).
Appears in 2 contracts
Sources: Board Appointment Agreement (dELiAs, Inc.), Board Appointment Agreement (Prentice Capital Management, LP)
Standstill. 10.1. From and after the Closing, without the prior consent Upon an exercise of the Board, the Investor hereby agrees that until such time as the earlier to occur Option which results in Grantee or any Holder owning in excess of (x) it ceases to Beneficially Own 59.9% of the Total Voting Power, and (y) a Pending COC Eventthen outstanding shares of Common Stock, the Investor person who would own in excess of 9.9% of such shares shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) be subject to the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectlyfollowing restrictions:
(a) it and its affiliates will not (and will not assist, provide or arrange financing to or for others or encourage other to), directly or indirectly, acting alone or as part of a group, (i) propose to Issuer or to any of Issuer's security holders or any other person any merger, consolidation or similar transaction, acquisition of a substantial portion of Issuer's business or assets, an acquisition of any of Issuer's securities or any other transaction involving any of Issuer's securities, in any such case involving it and the Issuer or the Issuer and any third party, (ii) acquire by purchase or otherwise, acquireor agree, agree to acquire propose or offer to acquire Voting any of the securities of Issuer or any interest therein (other than pursuant to exercises of the Option, stock dividends or other distributions by the Issuer or offerings by Issuer made available to holder of shares of Common Stock generally), (iii) otherwise seek to influence or direct control, in any manner whatsoever, (including proxy solicitation, becoming a "participant" in any "election contest," or indirect rights otherwise), the management or options policies of the Issuer or (iv) enter into discussions, negotiations, arrangements or understandings with, or solicit or encourage, any third party with respect to any of the foregoing or make public disclosure in respect of any of the foregoing or request permission to do any of the foregoing. (As used in this Agreement, the term "affiliate" shall have the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934.) (Notwithstanding the foregoing, any employee benefit, pension or similar plan of such person or the Company, as the case may be, may own, acquire Voting or transfer up to 1% of any class of securities of an Issuer in the ordinary course of business, solely for investment.); and
(b) it shall not sell, transfer or dispose of the Option Shares (a "Transfer") except:
(i) to affiliated or associated persons who agree to become subject to this Agreement on the same terms as such person;
(ii) in connection with a bona fide pledge, after default in the obligation secured by the pledge;
(iii) an offering or distribution of the Shares in compliance with the Securities Act in which reasonable efforts are made not to knowingly sell 5% or more of the then outstanding shares of Common Stock to any one person (including its affiliates and other members of a "group" within the meaning of Rule 13(d)(3) of the Securities Exchange Act of 1934);
(iv) in compliance with the requirements of Rule 144 under the Securities Act;
(v) in privately negotiated transactions which would not, to the reasonable knowledge of such person after reasonable inquiry, after giving effect to the Transfer result in the acquiror's ownership of 5% or more of the outstanding shares of Common Stock;
(bvi) enter into pursuant to a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” offer (as such terms are used in the proxy Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder) made by a party not affiliated or associated with such person for all outstanding Shares as to which offer a majority of the Commission) or written consents with respect to any Voting Stock directors of the Company;
(d) initiate, make Issuer then in office have not recommended that stockholders not tender or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofexchange their Shares; or
(vii) pursuant to a tender or exchange offer by the Issuer or in a merger or other transaction pursuant to an agreement with the Issuer. These restrictions shall expire upon the earlier of (i) otherwise take or cause any action inconsistent with any five years from the date of this Agreement and (ii) the date upon which such person owns less than 5% of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of outstanding shares of Common Stock necessary so long as this person continues to maintain the Total Voting Power own less than 5% of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional outstanding shares of Common Stock during a Permitted Purchase Period for the next twelve consecutive months and, if such purchase would result in the Investor Parties Beneficially Owning 25its ownership is 5% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of outstanding shares during this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time twelve month period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company then these restrictions shall once again apply to that it recommends any transaction that, if consummated, would result in a Change of Controlperson.
Appears in 2 contracts
Sources: Stock Option Agreement (Allied Waste Industries Inc), Stock Option Agreement (American Disposal Services Inc)
Standstill. 10.1. From The Principal Stockholder agrees that, (i) from the date hereof until the Closing Date and (ii) from and after the Closing, without Closing Date for so long as he shall be a Restricted Stockholder up to and including the prior consent tenth anniversary of the Boarddate of this Agreement, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor he shall not, and shall use his best efforts to cause its directors, officers, employees, representatives and his Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfwithout the prior written consent of the board of directors of Acquiror, directly or indirectly:
(aA) by purchase or otherwise, in any manner acquire, agree to acquire or offer make any proposal to acquire Voting Stock acquire, directly or direct indirectly, any Equity Securities of Acquiror or indirect any rights or options to acquire Voting Stock;
such Equity Securities (bother than the shares of Acquiror Stock received by him in the Merger and other than options granted to directors of Acquiror), (B) propose to enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor tointo, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the CompanyAcquiror or propose to purchase, any of its Subsidiaries directly or assets of the Company or its Subsidiaries constituting indirectly, a significant material portion of the consolidated assets of the Company and its SubsidiariesAcquiror, (C) make, or (iii) in any “way participate, directly or indirectly, in, any "solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 Regulation 14A under the Exchange Act Act) to vote or otherwise, or, except as expressly contemplated by this Agreement consent or the Certificate of Designations, otherwise seek the election to advise or appointment to, or representation on, or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of, or granting of a consent with respect to, any Voting Securities of Acquiror, (D) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) for the purpose of acquiring, holding voting or disposing of any Voting Stock that is inconsistent with the voting obligations Equity Securities of the Investor hereunder;
Acquiror, (fE) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence in any public manner or public forum the management, Board management or policies of Acquiror; provided, however, that the Company foregoing shall not limit the ability to vote any shares of any Equity Securities of Acquiror, (F) disclose any intention, plan or its Subsidiaries;
arrangement inconsistent with the foregoing, (gG) formadvise, join assist (including by knowingly providing or arranging financing for that purpose) or encourage any other Person in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) connection with respect to the Company involving any of the actions items described under clauses foregoing or (aH) through (f) hereof;
(h) knowingly take any action (other than in exercising his registration rights under the Registration Rights Agreement) which would or would reasonably be expected to result in the Company having might require Acquiror to make a public announcement regarding the possibility of a transaction between the Principal Stockholder and Acquiror (including any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”their respective Affiliates).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Stockholder Agreement (Iron Mountain Inc /De), Stockholder Agreement (Dauten Kent P)
Standstill. 10.1. From and after the Closing, without the prior consent of the Board, the Investor hereby Each Seller agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor Seller shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase acting alone or otherwisein concert with others, acquireseek to affect or influence the control of the management or board of directors of Parent or the business, agree to acquire operations or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
policies of Parent; (b) enter deposit any shares of Parent Class A Common Stock or securities exercisable or exchangeable or convertible into a short ofshares of Parent Class A Common Stock, or trade in, derivative other securities representing having the right to vote or economic benefits generally with shares of Parent Class A Common Stock (collectively "Parent Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage Securities") in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Parent Voting Stock Securities to any proxy, arrangement or agreement with respect to the voting of such Parent Voting Securities or other agreement having similar effect; (c) initiate or propose any stockholder proposal or make, or in any way, participate in, directly or indirectly, any "solicitation" of "proxies" to vote, other than in connection with the Merger and the Merger Agreement, or intentionally seek in an organized fashion to influence any person with respect to the voting of, any Parent Voting Stock that is Securities in a manner inconsistent with the voting obligations position of the Investor hereunder;
board of directors of Parent or become "participant" in a "solicitation" (fas such terms are defined in Regulation 14A under the Exchange Act, as in effect on the date hereof) except as expressly contemplated by this Agreement in opposition to the recommendation of the majority of the directors of Parent with respect to any matter; (d) join a partnership, limited partnership, syndicate or the Certificate of Designationsother group, or otherwise act, alone or act in concert with othersany other person, to seek representation on for the purpose of acquiring, holding, voting or to control or influence the managementdisposing of Parent Voting Securities, Board or policies of the Company or its Subsidiaries;
(g) formor, join or in any way participate in otherwise become a “group” ("person" within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect Act relating to the Company involving any of the actions items described under matters set forth in clauses (a), (b) through or (fc); or (e) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any other action inconsistent with any of the foregoing this Section 9.10. The provisions of this Section 10.1.
10.2. Notwithstanding 9.10 shall not apply to any Seller following such time after the provisions of Section 10.1, if Exchange as such Seller cease to beneficially own at any time the percentage least 25% of the Total Voting Power Beneficially Owned Exchange Shares acquired by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire such Seller in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”)Exchange.
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Stock Exchange Agreement (Designer Holdings LTD), Stock Exchange Agreement (Charterhouse Equity Partners Ii Lp)
Standstill. 10.1. From No Stockholder shall, during the period commencing on the date of this Agreement and continuing for 12 months after the Closing, without earlier of (a) the prior consent of Closing Date and (b) the BoardExpiration Date (such period, the Investor hereby agrees “Standstill Period”), unless such action is expressly contemplated by the Merger Agreement or otherwise shall have been specifically invited in writing by the Parent Board (it being understood that until execution of this Agreement by Parent does not constitute such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Poweran invitation), and (y) a Pending COC Event, the Investor shall not, and shall cause each Stockholder will direct its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, Representatives not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwiseotherwise and whether or not subject to conditions) to effecteffect or seek, or announce any intention to effect or seek, or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or otherwise participate in, :
(i) any acquisition of of, or obtaining any Voting Stock economic interest in, any right to direct the voting or rights disposition of, or options to acquire any Voting other Right with respect to, any Parent Common Stock, ;
(ii) any tender or exchange offer, merger or other consolidation, acquisition, merger, joint venture, business combination or extraordinary transaction involving the Company, Parent or any of its Subsidiaries or assets of the Company all or its Subsidiaries constituting a significant material portion of the consolidated assets of the Company and Parent or any of its Subsidiaries (except that any Stockholder or its Representatives may affect or pursue an acquisition of any assets offered for sale by Parent or any of its Subsidiaries, or );
(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Parent or any of its Subsidiaries; or
(iv) any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A promulgated by the proxy rules of the CommissionSEC) or written consents with respect to vote any Voting Stock voting securities of the Company;
(d) initiate, make Parent or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act of its Subsidiaries from any holder of any voting securities of Parent or otherwise, or, except as expressly contemplated by this Agreement or the Certificate any of Designations, otherwise seek the election or appointment toits Subsidiaries, or representation onotherwise advise, assist or the nomination of encourage any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of any Voting Stock that is inconsistent with the voting obligations securities of the Investor hereunder;
(f) except as expressly contemplated by this Agreement Parent or the Certificate any of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gb) form, join join, become a member of, or in any way participate in or engage in negotiations, arrangements, understandings or discussions regarding, a “group” (within the meaning of Section 13(dRule 13d-5(b)(l) of promulgated under the Exchange Act) with respect to any voting or other securities of Parent or any of its Subsidiaries or any securities convertible into or exercisable or exchangeable for any voting or other securities of Parent or any of its Subsidiaries or otherwise act in concert with any Person in respect of any such securities;
(c) call, request, or seek to have called any meeting of the Company involving stockholders of Parent or execute any written consent in lieu of a meeting of holders of any securities of Parent;
(d) otherwise seek, or propose to seek, representation on, or to control or influence, or to propose to control or influence, the Parent Board or the management, shareholders or policies of Parent or any of its Subsidiaries, or take any action to prevent or challenge any business combination or similar transaction to which Parent or any of its Subsidiaries is a party;
(e) request that Parent or any of its Representatives amend or waive any provisions of this Section 3.3, or make any public announcement with respect to the restrictions of this Section 3.3 or any plan, arrangement or intention with respect to any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly restricted by this Section 3.3 or take any action which would action, or would reasonably be expected make or permit its Representatives to result in the Company having take any action, that might force Parent or any of its Subsidiaries to make a public announcement or other public disclosure regarding any of the actions described under clauses types of matters set forth in clause (a), (b), (c) through or (fd) hereofabove; or
(if) otherwise take advise, assist, or cause knowingly encourage, or direct any action inconsistent Person to advise, assist or knowingly encourage any other persons with respect to any of the foregoing provisions of conduct prohibited by this Section 10.1.
10.23.3. Notwithstanding the provisions foregoing, the parties agree and acknowledge that (i) each Stockholder may vote its shares of Section 10.1, if Parent Common Stock at any time the percentage meeting of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result holders of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Parent Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1in its sole discretion, (Iii) any Stockholder may coordinate any such vote with, act in concert with, and be part of a “group” with, any other Stockholder that is an Affiliate of such Stockholder, and (iii) nothing in this Agreement Section 3.3 shall prohibit apply to potential or restrict actual purchases or sales of oil and/or gas assets between any Stockholder (or, for the Investor or avoidance of doubt, any of its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential InformationAffiliates), on the one hand, and Parent or any of its behalfSubsidiaries, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processhand.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Voting and Support Agreement (WildHorse Resource Development Corp), Voting and Support Agreement (Chesapeake Energy Corp)
Standstill. 10.1. From and after the Closing, without Without the prior written consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Powerno Member shall, and (y) a Pending COC Event, the Investor shall not, and each shall cause each of its directorsrespective Affiliates, officers, employees, representatives associates and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, Representatives not to, do any of the following for a period (the “Restricted Period”) commencing on the date hereof and ending on the day after the Company’s 2017 Annual Meeting of Stockholders (provided that nothing in this Section 3 shall limit any actions that may be taken by the Designee acting in its behalf, directly or indirectly:capacity as a director of the Company consistent with his fiduciary duties):
(a) by purchase or otherwise, acquire, offer or agree to acquire (except by way of stock dividends or offer other distributions or offerings made available to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into holders of voting securities of the Company generally on a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor topro rata basis), directly or indirectly, engage in whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a collared hedging transaction partnership, limited partnership, syndicate or other “group” (within the meaning of Section 13(d)(3) of the Common Stock following the conclusion Exchange Act), through swap or hedging transactions or otherwise, any voting securities of the period set forth Company or any voting rights decoupled from the underlying voting securities which would result in the PL Capital Group (together with any other Person or “group” referred to in this Section 93(a)) owning, controlling or otherwise having any ownership or voting interest in 10% or more of the outstanding shares of common stock of the Company;
(i) engage, or in any way participate, directly or indirectly, in any “solicitation” (as such term is defined in Rule 14a-1(l) under the Exchange Act) of proxies or consents in any “election contest” with respect to the Company’s directors (regardless of whether it involves the election or removal of directors of the Company), (ii) seek to advise, encourage or influence any Person with respect to the voting of any voting securities of the Company in any “election contest” with respect to the Company’s directors (regardless of whether it involves the election or removal of directors of the Company), (iii) initiate, propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) under the Exchange Act) stockholders of the Company for the approval of stockholder proposals in connection with the election or removal of directors of the Company, or (iv) induce or attempt to induce any other Person to initiate any such stockholder proposal;
(c) form, join or in any way participate in a partnership, syndicate, or other group, including without limitation any “group” as defined under Section 13(d)(3) of the Exchange Act, with respect to any voting securities of the Company in connection with any “election contest” with respect to the Company’s directors or any stockholder proposal for consideration at any stockholder meeting except as otherwise expressly provided in this Agreement;
(d) deposit any Company voting securities in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the voting thereof, except as expressly set forth in this Agreement;
(e) seek, alone or in concert with others, (1) to call a meeting of stockholders or solicit consents from stockholders or conduct a nonbinding referendum of stockholders, (2) to obtain representation on the Board except as otherwise expressly provided in this Agreement, (3) to effect the removal of any member of the Board, provided that this shall not pertain to the Designee or his replacement who is a director of the Company, (4) to make or be a proponent of a stockholder proposal at any meeting of the stockholders of the Company, or (5) to amend any provision of the Company’s certificate of incorporation or bylaws or make a request for any stockholder list or other books and records of the Company, whether pursuant to the Maryland General Corporation Law, the Company’s bylaws or otherwise;
(f) effect or seekseek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any Person), offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way knowingly assist, assist or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of more than 10% of any Voting Stock securities, or rights any material assets or options to acquire businesses, of the Company or any Voting Stockof its subsidiaries, (ii) any tender offer or exchange offer, merger merger, acquisition, share exchange or other business combination involving the Company, more than 10% of any of its Subsidiaries the voting securities or any of the material assets or businesses of the Company or any of its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiariessubsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) recapitalization, restructuring, liquidation, dissolution or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement other extraordinary transaction with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or any of its Subsidiariessubsidiaries or any material portion of its or their businesses, or (iv) make any public statement with respect to a transaction described in the foregoing clauses (i)-(iii);
(g) formenter into any discussions, join negotiations, agreements or in understandings with any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) Third Party with respect to the Company involving foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would foregoing, or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions foregoing; or
(h) make or in any way advance any request or proposal to amend, modify or waive any provision of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage than in a process that nonpublic and confidential manner and which nonpublic and confidential request could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution not reasonably be expected by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the to require public announcement disclosure by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlparty hereto.
Appears in 2 contracts
Sources: Cooperation Agreement (PL Capital Advisors, LLC), Cooperation Agreement (Banc of California, Inc.)
Standstill. 10.1. From and after the Closing, without the prior consent of the Board, the Investor hereby agrees that until Each such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting PowerOther Partner agrees, and (y) a Pending COC Eventshall cause its related Individual Partner to agree, that during the Investor Non-Solicitation Period, such Other Partner shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, related Individual Partner not to, on its behalf, directly or indirectlyexcept at the specific written request of the Board of Directors of the General Partner:
(a1) by purchase engage in or otherwisepropose, acquireor be a Participant in any Entity that engages in or proposes, agree to acquire any material transaction between the Parent and/or any Subsidiary of the Parent (or offer to acquire Voting Stock any of their respective successors), on the one hand, and such Other Partner, its related Individual Partner or direct any Entity in which Other Partner or indirect rights or options to acquire Voting Stockits related Individual Partner is a Participant, on the other hand;
(b2) enter into a short ofacquire any Equity Securities of the Parent and/or any Subsidiary of the Parent (or any of its successors) (other than Equity Securities issued to such Other Partner or its related Individual Partner by the Parent or issued to such Other Partner or its related Individual Partner by the Parent upon exercise of options issued to such Other Partner by the Parent), or trade inbe a Participant in any Entity that acquires any Equity Securities of the Parent and/or any Subsidiary of the Parent (or any of their respective successors);
(3) solicit proxies, derivative securities representing the right to vote or economic benefits be a Participant in any Entity that solicits proxies, or become a Participant in any solicitation of Voting Stock or rights or options to acquire Voting Stockproxies, except with respect to the extent necessary for election of directors of the Investor toGeneral Partner, the Parent and/or any Subsidiary of the Parent (or any of their respective successors) in opposition to the nominees recommended by the board of directors or similar governing body of any such Entity; or
(4) directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock activity that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would be reasonably be expected to result in a change of control of the Company having to make a public announcement regarding Parent and/or any Subsidiary of the Parent (or any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the their respective successors). The foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates subparagraph (together, the “Investor Parties”vi) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary shall not be construed to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor manner in which each such Other Partners or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on related Individual Partner exercises each such Other Partner’s or its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect related Individual Partner’s voting rights or options to acquire Voting Stock (v) pursuant to the issuance in respect of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion equity securities of the Shares Partnership acquired in accordance with the Certificate a manner that is not a violation of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Bumble Bee Capital Corp.), Limited Partnership Agreement (Bumble Bee Capital Corp.)
Standstill. 10.1. From Praesidium and the Manager Principals hereby agree that, from and after the Closing, without date of this Agreement and through and including the prior consent date of the BoardPurchaser’s annual meeting of stockholders (or any adjournment or postponement thereof) in 2021 (the “2021 Annual Meeting”), the Investor hereby agrees that until such time except as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Powerotherwise specifically provided in this Agreement, and (y) a Pending COC Event, the Investor Praesidium shall not, and Praesidium and the Manager Principals shall cause Praesidium’s controlled Affiliates and its directors, officers, employees, representatives Associates (as such terms are defined below) and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, all Managed Client Accounts not to, on its behalfin any way, directly or indirectly:
(a) 1. acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise (but excluding any action by the Purchaser such as a stock dividend), acquire(i) additional shares of Common Stock and any other securities of the Purchaser entitled to vote in the election of directors, agree or securities convertible into, or exercisable or exchangeable for, securities of the Purchaser entitled to acquire vote in the election of directors, whether or offer not subject to acquire the passage of time or other contingencies (including Common Stock, “Voting Stock Securities”), or (ii) direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short ofthrough purchase, or trade inexchange, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly conversion or otherwise) to effectadditional Voting Securities.
2. make, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) encourage any “solicitation” of “proxies” (as such terms are term is used in the proxy rules of the CommissionSecurities and Exchange Commission (the “SEC”)) or written consents of proxies with respect to the election or removal of directors of Purchaser or any other matter or proposal with respect to Purchaser or seek to advise, encourage or knowingly influence any person or entity (any “Person”) with respect to the voting of any Voting Stock Securities;
3. initiate or propose, or otherwise “solicit” (as such term is used in the proxy rules of the Company;
(d) initiateSEC), make directly or submit any stockholder proposalindirectly, the Purchaser’s stockholders for the approval of, shareholder proposals with respect to Purchaser, whether made pursuant to Rule 14a-4 or Rule 14a-8 under the Exchange Act or otherwise, oror cause or encourage any Person to initiate or propose any such shareholder proposal;
4. seek, except as expressly contemplated by this Agreement alone or the Certificate of Designationsin concert with others, otherwise seek the election or appointment to, or representation on, or nominate or propose the nomination of any candidate to, the Board of Directors of Purchaser (the “Board;
(e) deposit any Voting Stock in any voting trust ”), or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise actseek, alone or in concert with others, to seek representation on the removal of any member of the Board;
5. act alone or in concert with others to control or seek to control, or knowingly influence or knowingly seek to influence, the management, the Board or the policies of the Company or its SubsidiariesPurchaser;
(g) form6. form or join in a partnership, join limited partnership, syndicate or in any way participate in other group, including, without limitation, a “group” (within the meaning of as defined under Section 13(d) of the Exchange Act, with respect to any Voting Securities (other than Praesidium’s Section 13(d) group as disclosed in its Schedule 13D, as amended, with respect to the Company involving any of the actions items described under clauses (a) through (f) hereofPurchaser);
7. seek or propose any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets, sale or purchase of securities, dissolution, liquidation, restructuring, recapitalization or similar transaction involving the Purchaser or its subsidiaries;
8. enter into any arrangements, understanding or agreements (h) knowingly take whether written or oral), with, or advise, finance, assist or encourage, any action which would or would reasonably be expected to result other Person in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent connection with any of the foregoing provisions of actions set forth in this Section 10.1.III.A.(1-7), or make any investment in or enter into any arrangement or understanding or form a “group” with any other Person that engages, or offers or proposes to engage, in any of the foregoing actions set forth in this Section III.A.(1-7);
10.29. Notwithstanding make any statement regarding any intent, purpose, plan or proposal with respect to the Board, the Purchaser, its management, policies, affairs or assets, or any Voting Securities or this Agreement that is inconsistent with the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to including, without limitation, any intent, purpose, plan or proposal that is conditioned on, or would require the conversion of the Shares in accordance with the Certificate of Designationswaiver, (x) pursuant to amendment, nullification or invalidation of, any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms provision of this Agreement, or (iv) from exercising its rights related take any action that could require the Purchaser to make any public disclosure relating to any such intent, purpose, plan, proposal or condition; or
10. request that the Preferred Directors in Purchaser or the Certificate of Designations and this Agreement and the exercise by such Preferred Directors Board or any of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from respective representatives amend or waive any further Board discussions relating to such process.
10.4. For purposes provision of this Section 10, a “Pending COC Event” means, the earlier of III.A. (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlincluding this sentence).
Appears in 2 contracts
Sources: Share Repurchase Agreement (Quanex Building Products CORP), Share Repurchase Agreement (Praesidium Investment Management Company, LLC)
Standstill. 10.1. From ILDE agrees that, from and after the date of this Agreement until the Closing, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor ILDE shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) except for Company Equity Interests received (i) by way of stock splits, stock dividends, reclassifications, recapitalizations or other distributions by the Company in respect of the shares of Company Common Stock issued pursuant to this Agreement, (ii) pursuant to the exercise of the Warrants, or (iii) pursuant to Section 4.9, (x) acquire (directly or indirectly, by purchase or otherwise) any Company Equity Interests or (y) authorize, acquiremake or commence a tender offer, agree exchange offer or other offer or proposal (whether written or oral) to acquire (directly or offer to acquire Voting Stock indirectly, by purchase or direct or indirect rights or options to acquire Voting Stockotherwise) Company Equity Interests;
(b) enter into a short ofmake, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toin any way participate, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the CommissionSEC), or seek to advise or influence any Person (other than (x) ILDE or written consents its Affiliates, (y) in accordance with respect to any Voting Stock and consistent with the recommendation of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment toCompany Board, or representation on, or (z) solely in favor of the nomination of any candidate to, the Board;
(eTransaction) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunderCompany Equity Interests;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gc) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d13(d)(3) of the Exchange Act) for the purpose of voting, acquiring, holding or disposing of any Company Equity Interests;
(d) submit to the Company Board a written proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any of its Subsidiaries or any of their securities or assets, or make any public announcement with respect to the Company involving any of the actions items described under clauses (a) through (f) hereofsuch proposal or offer;
(he) knowingly take any action which would or would reasonably be expected to result in request the Company having to make a public announcement regarding amend or waive any provision of the actions described under clauses (a) through (f) hereofthis Section 4.8; or
(if) otherwise take or cause enter into any action inconsistent arrangement with any third party concerning any of the foregoing provisions of this Section 10.1foregoing.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Securities Purchase and Exchange Agreement (Geoglobal Resources Inc.), Securities Purchase and Exchange Agreement (Israel Land Development Company- Energy Ltd.)
Standstill. 10.1. From (a) On and after the Closing, without date hereof until the prior consent fifth anniversary of the BoardClosing (the “Standstill Period”), each of Leopard Parent, Dragon Parent and M (collectively, together with any other Person that is required to become a party to this Agreement pursuant to Section 4.01, the Investor hereby agrees that until such time as the earlier to occur of (x“LDM Investors”) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause ensure that its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor Controlled Persons and any other Affiliates that have received Company Confidential Information, not to, Person acting on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short behalf of, or trade inin concert with, derivative securities representing it or any of its Controlled Persons will not, and shall not knowingly facilitate or knowingly encourage any other Person (including, in the right to vote or economic benefits case of Voting Stock or rights or options to acquire Voting StockM, except to the extent necessary for the Investor any JCM Investee) to, directly or indirectly, engage in a collared hedging transaction any manner, effect any acquisition of ownership (including by operation of law and including the acquisition of the Common Stock following right to vote or direct the conclusion voting of any Company Securities) of Company Securities; provided that any LDM Investor shall be permitted to acquire additional Voting Securities (including the acquisition of the period set forth right to vote or direct the voting of any Company Securities) as long as such acquisition would not result in Section 9;the LDM Investors, together with their respective Affiliates, beneficially owning Voting Securities representing more than 18.5% of Total Voting Power outstanding at such time.
(cb) During any period in which the restrictions of Section 2.01(a) are in effect, each of the LDM Investors shall not, and shall ensure that any of its Controlled Persons and any Person acting on behalf of, or in concert with, it or its Controlled Persons shall not, and shall not knowingly facilitate or knowingly encourage any other Person (including, in the case of M, any JCM Investee) to, directly or indirectly, in any manner:
(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or otherwise participate in (other than as a seller on the same terms as other holders of Company Securities), any tender offer, take-over bid, amalgamation, plan of arrangement, merger, exchange offer, consolidation, business combination, recapitalization, restructuring or in other similar transaction involving the Company or any way knowingly assist, of its Subsidiaries (or knowingly facilitate any other Person to of their respective assets);
(ii) (A) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the CommissionSEC or in applicable Canadian securities laws) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tovote, or representation onwithhold from voting, or the nomination of seek to advise or influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting voting, or withholding from voting, of, or conduct any other type of referendum (binding or non-binding) with respect to, any Voting Securities, (B) solicit, knowingly facilitate or knowingly encourage, directly or indirectly, any third party (including, in the case of M, any JCM Investee) to engage in any such solicitation, (C) make any public statement in support of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
such third-party solicitation, (f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gD) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) group with respect to any Voting Securities (other than as a result of this Agreement and the Company involving Investor Rights Agreement) or (E) seek or propose the election or appointment of any person to, or representation on, or nominate or propose the nomination of any candidate to, the Board, or seek or propose the removal of any member of the actions items described under clauses (aBoard; provided that the prohibitions in this Section 2.01(b)(ii) through (f) hereofshall not affect the right to appoint, nominate or propose the nomination of any Investor Designee pursuant to the Investor Rights Agreement or this Agreement;
(hiii) knowingly (A) call, request the calling of or otherwise seek or assist in the calling of a meeting of the shareholders of the Company, or (B) seek, propose or submit, any proposal or matter of business (whether binding or not) to be considered or voted upon at a meeting of the shareholders of the Company, including pursuant to Rule 14a-8 under the Exchange Act or submit, or participate in, any “shareholder access” proposal;
(iv) publicly seek or propose to control the management or policies of the Company;
(v) disclose any intention, plan or arrangement prohibited by or inconsistent with the foregoing;
(vi) request that the Company (or its directors, officers, employees or agents), directly or indirectly, amend or waive any provision of this Section (including this sentence);
(vii) take any action which would or would reasonably be expected to result in the Company having to make a or require public announcement disclosure regarding any of the actions described under types of matters set forth in clauses (ai) through (f) hereofvi); or
(iviii) otherwise take agree or cause any action inconsistent with commit to any of the foregoing provisions of foregoing; provided that nothing contained in this Section 10.12.01(b) (other than Section 2.01(b)(i), which is subject to 2.01(c)) shall limit, restrict or prohibit any confidential discussions with or confidential communications or confidential proposals to the Board by the LDM Investors, their Affiliates or their representatives, in each case so long as such discussions, communications or proposals would not reasonably be expected to require any of the Company, the LDM Investors or their respective Affiliates or representatives to publicly disclose such discussions, communications or proposals; and provided, further, that, for the avoidance of doubt, nothing contained in this Section 2.01(b) shall limit, restrict or prohibit any of the LDM Investors from communicating with Mammoth on a confidential basis.
10.2. (c) Notwithstanding the provisions of Section 10.1foregoing and notwithstanding anything to the contrary contained herein, if at any time after the percentage Closing, any one or more of the Total Voting Power Beneficially Owned LDM Investors may make an LDM Buyout Offer (and, if approved by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power majority of the Company that disinterested directors on the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but Board who are not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiringInvestor Designees (other than Mammoth’s Investor Designees) or (ii) directors who are directors, agreeing managers, principals, partners, officers or employees of any LDM Investor or any of its Affiliates, may enter into a definitive agreement with the Company providing for such LDM Buyout Offer and thereafter take actions to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to consummate, and consummate, such LDM Buyout Offer on the issuance terms and conditions of Shares contemplated by Section 1.1 such definitive agreement). For purposes of this Agreement, (w) pursuant “LDM Buyout Offer” means any bona fide written proposal made on a confidential basis to the conversion Board (subject to any mandatory disclosure requirements under applicable securities laws) relating to the acquisition (whether by tender offer, take-over bid, amalgamation, plan of arrangement, merger, consolidation, business combination or otherwise) by any or all of the Shares in accordance with LDM Investors and their respective Affiliates of all of the Certificate of Designationsoutstanding Company Securities (other than the Company Securities held by the applicable LDM Investor(s) and their Affiliates) for consideration comprising solely cash, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during and includes a Permitted Purchase Period (provided, however, non-waivable requirement that the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result acquisition results in the Investor Parties Beneficially Owning 25% or more acquisition of all of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the outstanding capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processsame terms.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Voting and Standstill Agreement (Screaming Eagle Acquisition Corp.), Voting and Standstill Agreement (Lions Gate Entertainment Corp /Cn/)
Standstill. 10.1. From and after the Closing, without date of this Agreement until the prior consent of the Board, the Investor hereby agrees that Expiration Date or until such earlier time as the earlier restrictions in this Section 10 terminate pursuant to occur the terms of this Agreement (x) it ceases to Beneficially Own 5% such period, the “Restricted Period”), each member of the Total Voting Power, and (y) a Pending COC Event, the Investor Group shall not, and shall cause its directorsAffiliates and Associates (collectively, officers, employees, representatives and Affiliates controlled by (but the “Restricted Persons”) not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, absent prior express written invitation or authorization by the Board:
a. engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” (as such term is defined under the Securities Exchange Act of 1934, as amended and the rules promulgated thereunder (the “proxiesExchange Act”)) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such terms are used term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the proxy rules Exchange Act) in any such solicitation of proxies or consents;
b. knowingly encourage, advise or influence any other Person or knowingly assist any Person in so encouraging, advising or influencing any Person with respect to the giving or withholding of any proxy, consent or other authority to vote (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter or as otherwise permitted by this Agreement);
c. form, join or act in concert with any partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Commission) Exchange Act and the rules promulgated thereunder, with any entity or written consents person unaffiliated with the Investor Group and with respect to any Voting Stock Securities;
d. make or in any way participate, directly or indirectly, in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries (each, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict the Investor Group or any of its Affiliates or Associates from tendering (or failing to tender) shares, receiving payment or other consideration for shares, voting its shares “for” or “against” any Extraordinary Transaction, or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(di) initiateseek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board (except as otherwise permitted in this Agreement), (ii) seek, alone or in concert with others, or knowingly encourage any Person to seek, the removal of any member of the Board, (iii) request that, or knowingly encourage any Person to request that, the Company call any meeting of the Company’s stockholders, (iv) present any matter at any meeting of the Company’s stockholders, or (v) conduct, or knowingly encourage any Person to conduct, a referendum of the Company’s stockholders; provided, however, that nothing in this Agreement shall prevent any member of the Investor Group or any of their Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2023 Annual Meeting so long as such actions do not create a public disclosure obligation for the Investor Group or the Company and are undertaken on a basis reasonably designed to be confidential;
f. make or submit be the proponent of any stockholder proposal, whether made proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, );
g. make any request for stock list materials or other books and records of the Company under the Delaware General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
h. except as set forth in this Agreement, make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization of the Company, (iii) any other material change in the Company’s management, business or corporate structure, or (iv) any waiver, amendment or modification to the Company’s Fourth Amended and Restated Certificate of Incorporation (as may be amended from time to time, the “Charter”) or Bylaws, or other actions which may impede the acquisition of control of the Company by any Person;
i. enter into any negotiations, agreements or understandings with any Third Party to take any action that the Investor Group or any member thereof is prohibited from taking pursuant to this Section 10; j. institute, solicit, knowingly assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current, former or future directors or officers (including derivative actions) in order to effect or take any of the actions expressly contemplated prohibited by this Section 10; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Restricted Person from (i) bringing litigation to enforce the provisions of this Agreement, (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a Restricted Person, (iii) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or (iv) exercising statutory appraisal rights; provided, further, that the Certificate of Designationsforegoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process (and the Company agrees that this Section 10(j) shall apply mutatis mutandis to the Company and its directors, otherwise seek the election or appointment toofficers and employees (in each case, or representation on, or the nomination of any candidate to, the Board;
(eacting in such capacity) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement and Affiliates with respect to the voting of any Voting Stock that is inconsistent Investor Group in connection with the voting Company’s obligations set forth in the penultimate paragraph of the Investor hereunder;this Section 10); or
(f) except as expressly contemplated by this Agreement k. make any public request or the Certificate of Designationssubmit any public proposal, otherwise act, alone directly or in concert with othersindirectly, to seek representation on amend or to control or influence waive the managementterms of this Agreement, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action each case which would or would reasonably be expected to result in the Company having to make a public announcement regarding of such request or proposal; provided, that the restrictions in this Section 10 shall terminate automatically upon the earliest of (i) any breach of a material right of the Investor Group under this Agreement by the Company (including, without limitation, a failure to appoint the New Director in accordance with Section 1) upon five (5) business days’ written notice by any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any members of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary Group to maintain the Total Voting Power of the Company if such breach has not been cured within such notice period, provided that the Investor Parties Beneficially Owned immediately Group is not in material breach of this Agreement at the time such notice is given or prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion end of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company)notice period, (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transfereesExpiration Date, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will with respect to any Extraordinary Transaction that would directly or indirectly result in a Change the acquisition of Controlbeneficial ownership by any person or group of more than 50% of the Voting Securities or all or substantially all of the Company’s assets, or (civ) the public announcement commencement of any tender or exchange offer (by a person other than a member of the Company that it recommends any transaction thatInvestor Group or its Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a Change Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer. During the Restricted Period, the Company shall not adopt and shall not propose the adoption of Controlany amendment to the Charter or Bylaws that would reasonably be expected to impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future annual meeting of stockholders of the Company, and nothing contained in this Section 10 shall prevent the Investor Group from (i) privately communicating with the Company or the Board regarding any matter, (ii) making any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a Third Party, (iii) communicating with stockholders of the Company and others in a manner that does not otherwise violate this Section 10 or Section 11 or (iv) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over the Investor Group. Nothing in this Agreement shall prevent (a) the Company from responding to such Investor Group statements described in clause (ii) of the preceding sentence, subject to the obligations of the Parties under Section 11, or (b) the Company or the Investor Group from making any factual statement as required by applicable legal process, subpoena, or legal requirement or as part of a response to a request for information from any governmental authority with jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of discretionary acts by the Investor Group or any of its Affiliates or by the Company or any of its Affiliates, as applicable). Furthermore, for the avoidance of doubt, nothing in this Agreement shall be deemed to restrict in any way the New Director in the exercise of his rights or fiduciary duties under applicable law as a director of the Company.
Appears in 2 contracts
Sources: Cooperation Agreement (OptiNose, Inc.), Cooperation Agreement (OptiNose, Inc.)
Standstill. 10.1. From During the Standstill Period, each Stockholder agrees that it and after the Closingits Affiliates will not, without the prior written consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfSpecial Committee, directly or indirectly:
(a) acquire, offer, seek or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise (but excluding any Excluded Acquisition), acquire, agree to acquire or offer to acquire Beneficial Ownership of any Voting Stock or direct or indirect rights or options if after giving effect to acquire such acquisition such Stockholder would Beneficially Own more than 35% of the then outstanding shares of Voting Stock;
(b) enter into a short ofmake, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toin any way participate, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment toSEC), or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of any Voting Stock, other than, with respect to any Stockholder that is serving as an officer or director of the Buyer, in such Stockholder’s capacity as an officer or director of the Buyer; provided, that, the Stockholders (together, and not individually) may seek to nominate and have elected in any such context the lessor of (i) one-third of the members of the Board of Directors of the Buyer and (ii) the number of members of the Board of Directors of the Buyer equal to the product of (x) the total number of members of the Board of Directors and (y) the aggregate percentage of then outstanding shares of Voting Stock that is inconsistent with such Stockholders Beneficially Own, rounded down to the voting obligations of the Investor hereundernearest whole number;
(fc) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone separately or in concert conjunction with othersany other Person submit to stockholders of Buyer a proposal for or offer of (with or without conditions), any Extraordinary Transaction in which it is or proposes to seek representation on be either a principal, partner or financing source or is acting or proposes to control act as broker or influence the management, Board or policies of the Company or its Subsidiariesagent for compensation;
(gd) form, join or in any way participate in a “group” 13D Group (within the meaning of Section 13(dother than any Permissible Group Activities);
(e) present at any annual meeting or any special meeting of the Exchange ActBuyer’s stockholders or through action by written consent any proposal for consideration for action by stockholders or propose nominees for election to the Board that would constitute in excess of the lessor of (i) one-third of the members of the Board of Directors of the Buyer and (ii) the number of members of the Board of Directors of the Buyer equal to the product of (x) the total number of members of the Board of Directors and (y) the aggregate percentage of then outstanding shares of Voting Stock that such Stockholders Beneficially Own, rounded down to the nearest whole number, or seek the removal of a majority of the members of the Board;
(f) except as may be permitted by this section, grant any proxy, consent or other authority to vote with respect to any matters (other than to the Company involving named proxies included in the Buyer’s proxy card for an annual meeting or a special meeting) or deposit any of the actions items Voting held by such Stockholder in a voting trust or subject them to a voting agreement or other arrangement of similar effect;
(g) make or issue, or cause to be made or issued, any public disclosure, statement or announcement (including the filing or furnishing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) in support of or against any solicitation described under clauses in clause (ab) through above, except as provided in (fb) hereofand (e) above;
(h) knowingly take any action which would request the Buyer or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromrepresentatives, directly or indirectly, to amend or waive any provision of this Section 6.1; provided that any Stockholder may confidentially request the Buyer to amend or waive any provision of this Section 6.1 in a manner that would not be reasonably likely to require public disclosure by the Buyer or such Stockholder;
(i) acquiringexcept as may be required by law, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreementdisclose, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting matters considered at any meeting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction thatBuyer, if consummatedsuch Stockholder voted its shares contrary to the recommendation of the Board of Directors of the Buyer on any matter; or
(j) direct, would result in a Change of Controlinstruct assist or encourage any other Person to take any such action.
Appears in 2 contracts
Sources: Voting and Standstill Agreement, Voting and Standstill Agreement (Arbor Realty Trust Inc)
Standstill. 10.1. From No Stockholder shall, during the period commencing on the Closing Date and continuing for 12 months after the Closing, without the prior consent of the BoardClosing Date (such period, the Investor hereby agrees “Standstill Period”), unless such action shall have been specifically invited in writing by the Parent Board (it being understood that until execution of this Agreement by Parent does not constitute such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Poweran invitation), and (y) a Pending COC Event, the Investor shall not, and shall cause each Stockholder will direct its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, Representatives not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwiseotherwise and whether or not subject to conditions) to effecteffect or seek, or announce any intention to effect or seek, or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or otherwise participate in, :
(i) any acquisition of of, or obtaining any Voting Stock economic interest in, any right to direct the voting or rights disposition of, or options to acquire any Voting other Right with respect to, any Parent Common Stock, ;
(ii) any tender or exchange offer, merger or other consolidation, acquisition, merger, joint venture, business combination or extraordinary transaction involving the Company, Parent or any of its Subsidiaries or assets of the Company all or its Subsidiaries constituting a significant material portion of the consolidated assets of the Company and Parent or any of its Subsidiaries (except that any Stockholder or its Representatives may effect or pursue an acquisition of any assets offered for sale by Parent or any of its Subsidiaries, or );
(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Parent or any of its Subsidiaries; or
(iv) any “solicitation” of “proxies” (as such terms are used defined in Regulation 14A promulgated by the proxy rules of the CommissionSEC) or written consents with respect to vote any Voting Stock voting securities of the Company;
(d) initiate, make Parent or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act of its Subsidiaries from any holder of any voting securities of Parent or otherwise, or, except as expressly contemplated by this Agreement or the Certificate any of Designations, otherwise seek the election or appointment toits Subsidiaries, or representation onotherwise advise, assist or the nomination of encourage any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of any Voting Stock that is inconsistent with the voting obligations securities of the Investor hereunder;
(f) except as expressly contemplated by this Agreement Parent or the Certificate any of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gb) form, join join, become a member of, or in any way participate in or engage in negotiations, arrangements, understandings or discussions regarding, a “group” (within the meaning of Section 13(dRule 13d-5(b)(l) of promulgated under the Exchange Act) with respect to any voting or other securities of Parent or any of its Subsidiaries or any securities convertible into or exercisable or exchangeable for any voting or other securities of Parent or any of its Subsidiaries or otherwise act in concert with any Person in respect of any such securities;
(c) call, request, or seek to have called any meeting of the Company involving stockholders of Parent or execute any written consent in lieu of a meeting of holders of any securities of Parent;
(d) otherwise seek, or propose to seek, representation on, or to control or influence, or to propose to control or influence, the Parent Board or the management, shareholders or policies of Parent or any of its Subsidiaries, or take any action to prevent or challenge any business combination or similar transaction to which Parent or any of its Subsidiaries is a party;
(e) request that Parent or any of its Representatives amend or waive any provisions of this Section 3.3, or make any public announcement with respect to the restrictions of this Section 3.3 or any plan, arrangement or intention with respect to any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly restricted by this Section 3.3 or take any action which would action, or would reasonably be expected make or permit its Representatives to result in the Company having take any action, that might force Parent or any of its Subsidiaries to make a public announcement or other public disclosure regarding any of the actions described under clauses types of matters set forth in clause (a), (b), (c) through or (fd) hereofabove; or
(if) otherwise take advise, assist, or cause knowingly encourage, or direct any action inconsistent Person to advise, assist or knowingly encourage any other persons with respect to any of the foregoing conduct prohibited by this Section 3.3. Notwithstanding the preceding provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.13.3, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor a Stockholder and its Affiliates Representatives may request any amendment, waiver or consent described in clause (together, the “Investor Parties”e) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly Parent’s Chief Executive Officer or indirectlyParent’s entire Board of Directors (or any committee thereof), (i) acquiring, agreeing as long as all such request is kept strictly confidential by such Stockholder and its Representatives and would not reasonably be expected to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated require public disclosure by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) any party pursuant to any dividends applicable laws or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processexchange regulations.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Voting and Support Agreement (Range Resources Corp), Voting and Support Agreement (Memorial Resource Development Corp.)
Standstill. 10.1. From and after the Closing, without the prior consent As of the BoardEffective Date, except as previously disclosed to the Company in writing, the Investor hereby agrees that until and its Subsidiaries do not beneficially own any securities of NII entitled to be voted generally in the election of directors or any direct or indirect options or other rights to acquire any such time securities (“NII Securities”). From the Effective Date and so long as the earlier to occur provisions of (x) it ceases to Beneficially Own 5% this Section 6.11 are in effect, except as specifically requested in writing by NII, none of the Total Voting PowerInvestor or its Affiliates or any of the advisors to the Investor, and (ya) a Pending COC Eventwill publicly propose or publicly announce or otherwise disclose an intent to propose or enter into or agree to enter into, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and singly or with any other Affiliates that have received Company Confidential Information, not to, on its behalf, Person or directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any form of business combination, acquisition or other similar transaction relating to NII or any of any Voting Stock or rights or options to acquire any Voting Stockits material Subsidiaries, (ii) any tender form of restructuring, recapitalization or exchange offer, merger similar transaction with respect to NII or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its material Subsidiaries, or (iii) any “solicitation” of “proxies” demand, request or proposal to amend, waive or terminate this Section 6.11; and (as such terms are used in the proxy rules of the Commissionb) singly or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit other Person or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiringacquire, agreeing or offer, propose or agree to acquire acquire, by tender offer, purchase or offering to acquire Voting Stock otherwise, NII Securities (including acquisition of beneficial ownership of any NII Securities or direct of any derivative positions or indirect rights contracts, except any hedging activity or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Call Agreement, (wwhether or not cash settled, based on the value of any NII Securities) pursuant to the conversion or any material assets, indebtedness or businesses of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company)NII, (ii) following the conclusion make, or in any way actively participate in, any solicitation of the period set forth in Section 9, consummating, soliciting, offering, seeking proxies with respect to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned NII Securities (including by the Investor or its permitted assigns and transfereesexecution of action by written consent), (iii) disclosing the Investor’s intention participate in a program or organized effort to influence any person with respect to the voting or disposition of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this AgreementNII Securities, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on or actively encourage the terms and conditions generally made available formation of any partnership, syndicate or other group that owns or seeks or offers to acquire beneficial ownership of any NII Securities or material assets, indebtedness or businesses of NII or for the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from purpose of circumventing any further Board discussions relating to such process.
10.4. For purposes provision of this Section 10, a “Pending COC Event” means, 6.11; ***. The provisions of this Section 6.11 shall terminate and be of no further effect on the earlier of (ai) ***, (ii) the time, if any, when NII enters into a definitive agreement providing for a merger, consolidation or other business combination transaction or commences a process by which it proposes to sell or dispose of itself or substantially all of its assets (or any business or Subsidiary, in which case the provisions of this Section 6.11 shall no longer apply with respect to such business or Subsidiary), (iii) the time, if any, when a tender offer or exchange offer is commenced by a third Person for equity securities of NII, or (iv) on the later of (A) the date on which the Board Investor and its Subsidiaries no longer own over 5% of the issued and outstanding NII Shares and (iB) publicly recommends the date that is six months after the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication rights granted to the stockholders Investor pursuant to Article 7, including the Special Approval Rights, have terminated. The foregoing shall in no way impact Investor’s rights to acquire, register or dispose of the Company within such time period, (b) the execution NII Securities as contemplated by the Company of a definitive agreement which if consummated will result in a Change of Control, Transaction Documents or (c) Investor’s other rights under the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlTransaction Documents.
Appears in 2 contracts
Sources: Investment and Securities Subscription Agreement (Grupo Televisa, S.A.B.), Investment and Securities Subscription Agreement (Nii Holdings Inc)
Standstill. 10.1. From ▇▇▇▇▇ and after Purchaser agree that, for a period of one year from the ClosingClosing Date, neither they nor any of their controlled “affiliates” (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934 (the “Exchange Act”), but excluding any companies in which ▇▇▇▇▇ holds less than 25% of the outstanding equity or 25% of the board seats) will, or will assist or encourage others to, without the prior written consent of the BoardSeller: (i) acquire or agree, the Investor hereby agrees that until such time as the earlier offer, seek or propose to occur of (x) it ceases acquire, or cause to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfbe acquired, directly or indirectly:
(a) , by purchase or otherwise, acquireownership (including, agree to acquire or offer to acquire Voting Stock without limitation, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934 of any voting securities or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short ofany voting securities of Seller or any subsidiary thereof, or trade inof any successor to or person in control of Seller, derivative securities representing any of the right to vote assets or economic benefits businesses of Voting Stock Seller or any subsidiary or division thereof or of any such successor or controlling person or any bank debt, claims or other obligations of Seller or any rights or options to acquire Voting Stock, except to (other than those currently owned) such ownership (including from a third party) provided that the extent necessary for the Investor to, directly or indirectly, engage foregoing will not prohibit ▇. ▇▇▇▇▇ & Co. Inc. from effecting unsolicited client transactions in a collared hedging transaction securities of the Common Stock following the conclusion of the period set forth in Section 9;
Seller; (cii) effect or seek, offer seek or propose (whether publicly to influence or otherwise) control the management or policies of Seller or to effectobtain representation on Seller’s Board of Directors, or announce any intention to effect or cause solicit, or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Companysolicitation of, any of its Subsidiaries proxies or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock securities of Seller, or make any public announcement with respect to any of the Company;
foregoing or request permission to do any of the foregoing; (diii) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment public announcement with respect to, or representation onsubmit a proposal for, or the nomination offer of (with or without conditions) any candidate toextraordinary transaction involving Seller or its securities or assets; (iv) enter into any discussions, the Board;
(e) deposit negotiations, arrangements or understandings with any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement third party with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement foregoing, or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d13(d)(3) of the Exchange Act) in connection with any of the foregoing; (v) publicly seek or request permission or participate in any effort to do any of the foregoing or make or seek permission to make any public announcement with respect to the Company involving foregoing; or (vi) publicly request Seller or any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromrepresentatives, directly or indirectly, (i) acquiring, agreeing to acquire amend or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to waive any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes provision of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control4.15.
Appears in 2 contracts
Sources: Merger and Asset Purchase Agreement (National Rv Holdings Inc), Merger and Asset Purchase Agreement (Riley Investment Management LLC)
Standstill. 10.1. From and after the Closing, without the prior consent of the Board, the Investor hereby Each Selling Party agrees that until such time for a period of two years from the date hereof (the “Standstill Period”), neither it nor any of its affiliates, alone or with others comprising a “group” (as defined under the earlier to occur of Exchange Act), will in any manner (x1) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire acquire, or offer make any proposal (or request permission to make any proposal) to acquire Voting Stock any securities (or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short ofrights, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights warrants or options to acquire any Voting Stocksecurities) representing in the aggregate two percent (2%) or more of the voting power of Parent Common Stock (other than the Parent Common Stock to be issued as Merger Consideration or Interests Purchase Consideration, as the case may be, and Parent Common Stock that may be issued to individuals who are among the Selling Parties as employee compensation) or material property of Parent, unless such acquisition, agreement or making of a proposal shall have been expressly first approved (or in the case of a proposal, expressly first invited) by the Parent Board, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g2) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of as defined under the Exchange Act) with respect to any securities of Parent or any of its Subsidiaries or otherwise act, alone or in concert with others, to solicit proxies from shareholders of Parent or otherwise seek to influence or control the Company involving management or policies of Parent or any of its affiliates (except, in the case of ▇▇▇▇ ▇▇▇▇▇▇▇▇, in his role as director, Chairman of the Parent Board and employee of Broadpoint Capital, Inc., and in the case of any other Selling Party, in such Selling Party’s role as an employee of Parent or any of its Subsidiaries; it being understood that the foregoing shall not prohibit any such person from expressing his or her views on matters to be voted upon by stockholders so long as such expressions do not constitute a “solicitation” necessitating a public filing under the applicable rules of the Exchange Act), or (3) assist, advise or encourage (including by knowingly providing or arranging financing for that purpose) any other person in doing any of the actions items described under clauses foregoing. Each Selling Party hereby represents that neither it nor its affiliates beneficially own any shares of Parent Common Stock as of the date hereof or as of the Closing Date (a) through (f) hereof;
(h) knowingly take any action which would other than the Parent Common Stock to be issued as Merger Consideration or would reasonably Interests Purchase Consideration, as the case may be). Notwithstanding the foregoing, such Selling Party and its affiliates will not be expected subject to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
restrictions set forth in this paragraph, and this paragraph shall terminate and be of no further force or effect, if Parent shall have entered into a definitive agreement providing for (i) otherwise take or cause any action inconsistent with any acquisition of a majority of the foregoing provisions voting securities of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at Parent by any time the percentage of the Total Voting Power Beneficially Owned person or group (other than by the Investor MatlinPatterson FA Acquisition LLC and its Affiliates affiliates (togethercollectively, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional SharesPermitted Holders”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following any acquisition or disposition of substantially all the conclusion consolidated assets of Parent by any person or group (other than the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor Permitted Holders) or its permitted assigns and transferees, (iii) disclosing the Investor’s intention any form of merger, business combination, acquisition, restructuring, recapitalization or similar transaction with respect to Parent pursuant to which, immediately following such transaction, any person (other than the voting Permitted Holders) or the direct or indirect shareholders of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors person shall beneficially own a majority of the Company; and (II) if outstanding voting power of Parent or of the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate surviving parent entity in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processtransaction.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Merger Agreement (Gleacher & Company, Inc.), Merger Agreement (Broadpoint Securities Group, Inc.)
Standstill. 10.1. From (a) Effective as of the date of this Agreement, other than as contemplated by this Agreement, each Investor agrees that, prior to August 8, 2005, it will not and after will not permit any member of the ClosingWarburg Group or any other controlled Affiliate to, in any manner, whether publicly or otherwise, directly or indirectly, without the prior written consent of the BoardCompany, the Investor hereby agrees that until such time as the earlier to occur of (xi) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer make any public proposal to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toacquire, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition beneficial ownership of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries voting securities or assets of the Company or its Subsidiaries constituting a significant portion any Subsidiary, (ii) enter into or publicly propose to enter into, directly or indirectly, any merger or other business combination or similar transaction or change of the consolidated assets of control involving the Company and its Subsidiariesor any Subsidiary, or (iii) make, or in any “way participate, directly or indirectly, in any "solicitation” " of “"proxies” " (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tovote, or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of of, any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies securities of the Company or its Subsidiaries;
any Subsidiary, (giv) 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 7.04 or seek a release of the restrictions contained in this Section 7.04, (vi) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect to any securities of the Company involving or any Subsidiary, (vii) other than any seat on the Board of Directors expressly granted to the Warburg Group by Section 6.09, seek representation on the Board of Directors, the removal of any directors from the Board of Directors or a change in the size or composition of the actions items described under clauses Board of Directors (aincluding, without limitation, voting for any directors not nominated by the Board of Directors), (viii) through enter into any discussions, negotiations, arrangements, understandings or agreements (fwhether written or oral) hereof;
(h) knowingly take with any action which would other Person regarding any possible purchase or would reasonably be expected to result in sale of any securities or assets of the Company having or any Subsidiary, (ix) disclose any intention, plan or arrangement inconsistent with the foregoing, (x) take, or solicit, propose to make a public announcement regarding or agree with any other Person to take, any similar actions designed to influence the management or control of the actions described under clauses Company or (axi) through (f) hereof; or
(i) otherwise take advise, assist or cause encourage any action inconsistent other Persons in connection with any of the foregoing provisions of this Section 10.1foregoing.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Backstop Agreement (Warburg Pincus LLC), Backstop Agreement (Avaya Inc)
Standstill. 10.1. From 7.1 Subscriber agrees that until the earlier of (i) the third (3rd) anniversary of the First Step Investment Closing and after (ii) the Closingoccurrence of a Significant Event (as defined below) (the “Standstill Period”), without the prior written consent of the BoardIssuer, the Investor hereby agrees that until such time as the earlier to occur it will not at any time, nor will it cause or permit any of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not affiliates to, on its behalf, directly or indirectly:
: (a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, knowingly facilitate or knowingly facilitate encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (ix) any acquisition of any Voting Stock securities (or beneficial ownership thereof), or rights or options to acquire any Voting Stocksecurities (or beneficial ownership thereof) as a result of which Subscriber would beneficially own more than thirty-five percent (35%) of the issued and outstanding shares of Class A common stock on a fully-diluted and as-converted basis, (iiy) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries Issuer or assets of the Company or its Subsidiaries Issuer constituting a significant portion of the consolidated assets of the Company and its SubsidiariesIssuer, or (iiiz) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to vote any Voting Stock voting securities of the Company;
Issuer or any of its affiliates; (db) initiateform, make join or submit in any stockholder proposal, whether made pursuant to Rule 14a-8 way participate in a “group” (as defined under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(eAct) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting Issuer or otherwise act in concert with any person in respect of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
such securities; (fc) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the Board or policies of the Company Issuer or its Subsidiaries;
to obtain representation on the Board; (gd) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in require the Company having Issuer to make a public announcement regarding any of the actions described under clauses types of matters set forth in clause (a) through above; or (fe) hereof; or
(i) otherwise take enter into any discussions or cause arrangements with any action inconsistent third party with respect to any of the foregoing provisions of foregoing; it being understood that nothing in this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, 7 shall (I) nothing restrict or prohibit the any representative of Subscriber on the Board from taking any action, or refraining from taking any action in this Agreement shall prohibit connection with his or her role as a member of the Board or (II) restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion Subscriber’s acquisition of the Shares in accordance with the Certificate terms of Designationsthis Subscription Agreement. Further, (x) pursuant to nothing in this Section 7 shall prohibit Subscriber from making any dividends proposal or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention offer with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related foregoing directly to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by Board on a confidential basis; provided that such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines proposal or offer would not reasonably be expected to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in require any public disclosure regarding such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4proposal or offer. For purposes of this Section 107, a “Pending COC Significant Event” means, the earlier of shall mean (aA) the date on entry by the Issuer into a definitive agreement providing for, directly or indirectly, (x) any acquisition or purchase by any person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than by Subscriber or any of its affiliates, of securities representing or convertible into fifty percent (50%) or more of the then outstanding voting securities of the Issuer or any of its subsidiaries, (y) any merger, consolidation, business combination or similar transaction involving the Issuer or any of its subsidiaries pursuant to which the Board stockholders of the Issuer immediately preceding such transaction will hold less than fifty percent (i50%) publicly recommends that of the stockholders tender their shares to outstanding voting securities of the surviving or resulting entity of such transaction; or (z) any Person who has publicly announced sale, lease, exchange, transfer, license or disposition of all or a majority of the consolidated assets of the Issuer and its subsidiaries (any of the transactions described in the foregoing clauses (x), (y) or (z), an “Acquisition Transaction”), (B) commencement or other public announcement by a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than Subscriber or any of its affiliates, of a tender offer or exchange offer which, if consummated, would result in a Change of Control, constitute an Acquisition Transaction and the Board either accepts or (ii) recommends such offer or fails to recommend within ten (10) Business Days from the date of commencement or other public announcement of such offer that its stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to and (C) the stockholders closing price of the Company Class A common stock falls below $5.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any twenty (20) trading days within such time any thirty (30)-trading day period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Subscription Agreement (Naspers LTD), Subscription Agreement (Churchill Capital Corp II)
Standstill. 10.1. From and after (a) Until the Closing, without the prior consent of the Board, the Investor hereby agrees date that until such time as is the earlier to occur of (xi) it ceases to Beneficially Own the date that is five (5% ) years from the date of the Total Voting PowerSeparation, and (yii) a Pending COC Eventthe date that is one (1) year following the Phase One Effective Date (as defined in the Offtake Agreement), the Investor shall will not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, without the prior written consent of Corporation or as otherwise expressly permitted under this Agreement:
(i) effect, seek, offer or propose, or in any way advise or encourage any other Person to seek representation on effect, seek, offer or to control propose (in each case, whether publicly or influence otherwise):
(A) any take-over bid, merger, amalgamation, plan of arrangement, reorganization or other business combination involving the management, Board Corporation or policies any of the Company or its Subsidiariesassets;
(gB) formany recapitalization, join restructuring, liquidation, dissolution, disposition of a material portion of the assets or other extraordinary transaction with respect to the Corporation or any of its assets;
(ii) directly or indirectly make, or in any way participate in a “group” (within the meaning in, any solicitation of Section 13(d) of the Exchange Act) with respect proxies to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would vote, or would reasonably be expected seek to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take advise or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and influence any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned voting securities of the Corporation;
(iii) otherwise act in a manner to seek to control the management, Board or the policies of the Corporation beyond the board and committee representation provided in this Agreement;
(iv) enter into any arrangements, understandings or agreements, whether written or oral, with, or advise, finance, aide, encourage or act in concert with, any other Persons in connection with any of the foregoing;
(v) make any public announcement of any intention to do or take any of the foregoing or take any action that could require the Corporation to make a public announcement with respect to any of the foregoing; or
(vi) attempt to induce any party not to make or conclude any proposal with respect to the Corporation by it so long threatening or indicating that Investor may take any of the foregoing actions.
(b) The Investor will not, alone or in concert with others, without the prior written consent of Corporation or as such voting intention is consistent with the terms of otherwise expressly permitted under this Agreement, Purchase any Equity Securities that would result in the Investor owning, or exercising control over, more than 20% of the then outstanding Common Shares.
(ivc) from exercising Notwithstanding the foregoing, the limitations and prohibitions set forth in this Section 4.4 shall not apply to any confidential offer or proposal made by the Investor or its rights related Affiliates to the Preferred Directors in Board and shall no longer apply from the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier earliest of (ai) the date on which the Board (i) publicly recommends Corporation enters into a definitive agreement with a third party that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Controlprovides for an acquisition of, or business combination with, the Corporation where the securityholders of the Corporation would own less than 50% of the voting securities of the surviving Corporation, (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of date the Company within such time period, (b) the execution by the Company of Corporation enters into a definitive agreement which if consummated will result in with a Change third party that provides for an acquisition of Controlall or substantially all of the assets of the Corporation; or (iii) the date a third party enters into a definitive agreement to acquire, or acquires, “beneficial ownership” (cas such term is defined in the Securities Act (British Columbia), as amended) of more than 50% of the public announcement by voting securities of the Company Corporation. In the event that it recommends any the proposed transaction thatin (i), if consummated(ii) or (iii) is terminated, would result the limitations and prohibitions set forth in a Change of Controlthis Section 4.4 shall be reinstated.
Appears in 2 contracts
Sources: Investor Rights Agreement (Lithium Americas Corp.), Investment Agreement (Lithium Americas Corp.)
Standstill. 10.1. From and after (a) For a period of six (6) years from the Closing, without Closing (the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event“Standstill Period”), the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and shall ensure that none of its Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor Person to, directly or indirectly, engage without the prior consent of a majority of the At-Large Directors who are Independent Directors:
(i) acquire or agree to acquire (whether by purchase, tender or exchange offer, through acquisition of control of another Person, by joining a 13D Group, through the use of a derivative instrument or voting agreement, or otherwise), Beneficial Ownership of any Equity Securities, or any Economic Right or Voting Right to or regarding any Equity Securities, or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in a collared hedging transaction each case, if the effect of such acquisition would be that the Common Stock following Beneficially Owned in the conclusion aggregate by the Investor and its Affiliates (including, without limitation, any 13D Group of which any Investor or any Affiliate thereof is a member), or with respect to which the period set forth Investor, its Affiliates or any such 13D Group would have Economic Rights or Voting Rights, would exceed the Standstill Limit (it being understood that in the event that there shall be more than one (1) Investor, all shares Beneficially Owned and all Economic Rights and Voting Rights held by all Investors and all other Persons that are participants in any 13D Group of which any Investor is a member shall be aggregated, and deemed Beneficially Owned and held by each Investor, for purposes of this Section 93.2(a)(i));
(cii) (A) make or in any way participate in any “solicitation” of “proxies” (as such terms are used in the rules and regulations of the SEC) with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor or any Affiliate or (y) in accordance with and consistent with the recommendation of the Board);
(iii) deposit any Voting Stock or Series B Shares in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock or Series B Shares to any arrangement or agreement with any Person (other than between the Investor and any of its First Tier Affiliates) with respect to the voting of such Voting Stock or Series B Shares;
(iv) join a 13D Group (other than a group comprising solely of the Investor and its Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock, Series B Shares or Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effecteffect any Change of Control or any acquisition of Equity Securities in excess of the Standstill Limit;
(vi) otherwise act, or announce any intention to effect or cause or participate in alone or in any way knowingly assistconcert with others, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition control of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;Company; or
(gvii) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly otherwise take any action which that would or would could reasonably be expected to result in compel the Company having to make a public announcement (including any disclosure required to be made in any SEC filing under the rules and regulations of the SEC) regarding any of the actions described matters set forth in this Section 3.2(a). Notwithstanding the foregoing, the restrictions contained in this Section 3.2(a) shall not (A) apply with respect to the election of the Series B Directors by Investor and its Permitted Transferees in accordance with the Certificate of Designation, (B) prevent, restrict, encumber or in any way limit the ability of any Series B Director to vote on matters, make non-public statements to officers, employees, agents, management or other Directors or to take any action or make any statement at any meeting of the Board or any committee or subcommittee thereof in his or her capacity as a Director, (C) apply to or restrict any non-public discussions or other non-public communications between or among directors, members, officers, employees or agents of the Investor or any First Tier Affiliate of the Investor, or (D) restrict any disclosure or statements required to be made by any Series B Director or the Investor under clauses applicable law.
(ab) through If during the Standstill Period the Investor is entitled (fas a result of dilution due to future share issuances by the Company) hereof; orto purchase shares of Common Stock (up to the Standstill Limit) in compliance with this Section 3.2, then unless the Board otherwise approves such purchases shall be made in full compliance with all applicable securities laws, but shall not be made by means of any tender offer.
(c) The restrictions set forth in Section 3.2(a) shall terminate if, at any time during the Standstill Period, (i) otherwise take or cause any action inconsistent with any the Company publicly announces its entry into a definitive agreement, the consummation of which would result in a Change of Control, and such agreement has not been approved by a majority of the foregoing provisions Series B Directors, (ii) the Company shall have waived the terms of its Rights Agreement to permit any Person (other than the Investor or any 13D Group of which the Investor is a member) to effect a Change of Control or otherwise acquire more than fifteen percent (15%) of the outstanding Common Stock, and such transaction has not been approved by a majority of the Series B Directors, or (iii) any Person (other than the Investor or any Affiliate of the Investor or any 13D Group of which the Investor or any Affiliate of the Investor is a member) shall have commenced a bona fide public tender or exchange offer which if consummated would result in a Change of Control, unless the Board recommends against such tender or exchange offer within ten (10) Business Days after the commencement (as such term is defined in Rule 14d-2 under the Exchange Act) thereof and thereafter continues to oppose such tender or exchange offer. If (x) the restrictions set forth in Section 3.2(a) shall have terminated as provided in this Section 10.13.2(c), and (y) any definitive agreement described in clause (i) above, or transaction described in clause (ii) above, or tender or exchange offer described in clause (iii) above, as the case may be, shall have been terminated or abandoned prior to consummation thereof, and (z) any alternative offer or proposal by Investor in response to any such agreement, transaction, tender offer or exchange offer shall also have been abandoned or withdrawn prior to consummation thereof, then the restrictions set forth in Section 3.2(a) shall be reinstated.
10.2. Notwithstanding (d) If during the provisions Standstill Period the Board elects to commence a process intended to lead to a proposal with respect to Change of Section 10.1Control of the Company (whether in response to a proposal from a third party or otherwise), the Company will notify the Investor of the Board’s election and will permit the Investor to participate in such process as a potential bidder, if at the Investor so elects, on the same terms and conditions as third party participants. As a condition to the Investor’s participation in such process, the Board may require that the Investor agree in writing with the Company that if such process results in the Board’s approval of a Change of Control transaction with a Person other than the Investor that is a Superior Proposal as compared to any time bona fide written proposal from the percentage Investor, then the Investor will consent to such transaction, will raise no objection to the consummation thereof, and will tender shares of Equity Securities Beneficially Owned by it, as applicable, upon the consummation of such transaction. In the event that any such transaction requires the approval of the Total Company’s stockholders, the Investor agrees, if the matter is brought to a vote at a stockholder meeting, that the Investor will be present, in person or by proxy, as holders of Voting Power Stock, at all such meetings and be counted for determining the presence of a quorum at such meetings and will vote for the approval of any such transaction approved and recommended by the Board. So long as the Board continues to recommend such transaction, the Investor agrees to vote and to use reasonable efforts to cause its Affiliates, as the case may be, to vote all shares of Voting Stock Beneficially Owned by the Investor and its Affiliates (togetherin favor of such transaction and for the approval of the terms thereof and in opposition to any and all other proposals that are intended, or could reasonably be expected to delay, prevent, impair, interfere with, postpone or adversely affect the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power ability of the Company to consummate the proposals that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives are approved and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned recommended by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processBoard.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Stockholder Agreement (Trident Microsystems Inc), Stockholder Agreement (Trident Microsystems Inc)
Standstill. 10.1. From and after Until the Closing, without the prior consent of the BoardTermination Date, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor Engaged Group shall not, and shall cause each of its directors, officers, employees, representatives Affiliates and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, Associates not to, on its behalf, directly or indirectly, in any manner, alone or in concert with others, in each case without the prior written waiver authorized by the Board:
(a) by purchase or otherwise, (i) acquire, cause to be acquired, or offer, seek or agree to acquire acquire, whether by purchase, tender or offer to acquire Voting Stock exchange offer, through the acquisition of control of another person, by joining or forming a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or other Synthetic Equity Interests, or otherwise (the taking of any such action, an “Acquisition”), beneficial ownership of any securities or assets of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Stock;
(bSecurities) enter into a short ofsuch that after giving effect to any such Acquisition, the Engaged Group or trade in, derivative securities representing the right to vote or economic benefits any of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toits Affiliates and Associates holds, directly or indirectly, engage in a collared hedging transaction excess of 9.9% of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting StockSecurities, (ii) any tender acquire, cause to be acquired or exchange offer, merger seek or other business combination involving the Companyagree to acquire, whether by purchase or otherwise, any of its Subsidiaries or assets interest in any indebtedness of the Company or its Subsidiaries constituting a significant portion (iii) acquire, cause to be acquired or offer, seek or agree to acquire, ownership (including beneficial ownership) of the consolidated assets any asset or business of the Company and its Subsidiariesor any right or option to acquire any such asset or business from any person, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock each case other than securities of the Company;
(db) initiateexcept as otherwise provided in Section 1, make (i) nominate, give notice of an intent to nominate, or recommend for nomination a person for election to the Board or take any action in respect of the removal of any director, (ii) seek or knowingly encourage any person to submit any nomination in furtherance of a “contested solicitation” or take any other action in respect of the election or removal of any director, (iii) submit, or seek or knowingly encourage the submission of, any stockholder proposal, whether made proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration at, oror bring any other business before, except any Stockholder Meeting, (iv) request, or knowingly initiate, encourage or participate in any request, to call a Stockholder Meeting, (v) publicly seek to amend any provision of the Charter, the Bylaws, or other governing documents of the Company (each as expressly contemplated by may be amended from time to time), or (vi) take any action similar to the foregoing with respect to any subsidiary of the Company; provided, however, that nothing in this Agreement shall prevent the Engaged Group or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the Company’s 2024 annual meeting of stockholders (the “2024 Annual Meeting”) so long as such actions do not create a public disclosure obligation for the Engaged Group or the Certificate Company and are undertaken on a basis reasonably designed to be confidential as between the Company and the Engaged Group or between the Engaged Group and persons whom it contacts as potential director candidates in connection with the 2024 Annual Meeting;
(c) solicit any proxy, consent or other authority to vote of Designations, otherwise seek the election stockholders or appointment conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or representation onfrom the holders of, Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the nomination Exchange Act) in, or knowingly assist, advise, initiate, encourage or influence any person (other than the Company) in, any “solicitation” of any candidate toproxy, consent or other authority to vote any Voting Securities (other than such assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter); provided, however, that the foregoing shall not restrict the Engaged Group from stating how it intends to vote with respect to an Extraordinary Transaction, if any, in accordance with Section 2 and the reasons therefor;
(ed) (i) grant any proxy, consent or other authority to vote with respect to any matters other than to the named proxies included in the Company’s proxy card for any Stockholder Meeting or as otherwise permitted by the provisos in Section 2 or (ii) deposit or agree or propose to deposit any Voting Stock securities of the Company in any voting trust or similar arrangement, or subject any Voting Stock securities of the Company to any agreement or arrangement or agreement with respect to the voting of such securities (including a voting agreement or pooling arrangement), other than (A) any such voting trust or arrangement solely for the purpose of delivering to the Company or its designee a proxy, consent or other authority to vote in connection with a solicitation made by or on behalf of the Company or (B) customary brokerage accounts, margin accounts and prime brokerage accounts;
(e) knowingly encourage, advise or influence any person or knowingly assist any person in so encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Stock Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no,” or similar campaign), in each case other than such encouragement, advice or influence that is inconsistent consistent with the voting obligations of the Investor hereunderBoard’s recommendation in connection with such matter or permitted by Section 3(c) with respect to an Extraordinary Transaction;
(f) except as expressly contemplated by this Agreement or without the Certificate prior written approval of Designationsthe Board, otherwise act, alone separately or in concert conjunction with othersany other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to seek representation on act as broker or agent for compensation, publicly propose, suggest or recommend, or in a manner that the Engaged Group is required under applicable law, rule or regulation to control disclose publicly, any Extraordinary Transaction; provided, however, that nothing in this Section 3 shall be interpreted to prohibit the Engaged Group from proposing, suggesting or influence the management, Board or policies of recommending any Extraordinary Transaction privately to the Company so long as any such action is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Engaged Group or its Subsidiariesany other person;
(g) form, join join, encourage the formation of, or in any way participate in a “group” any partnership, limited partnership, syndicate or group (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect to the Company involving any Voting Securities (other than a group that includes all or some of the actions items described under clauses (a) through (f) members of the Engaged Group, but does not include any other entities or persons that are not members of the Engaged Group as of the date hereof; provided that nothing herein shall limit the ability of an Affiliate of the Engaged Group to join such group following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement);
(h) knowingly make or publicly advance any request or proposal to amend, modify or waive any provision of this Agreement, or take any action challenging the validity or enforceability of any provision of or obligation arising under this Agreement; provided that the Engaged Group may make confidential requests to the Board to amend, modify or waive any provision of this Agreement, which the Board may accept or reject in its sole and absolute discretion, so long as any such request is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would or would not reasonably be expected to result in require the public disclosure thereof by the Company, the Engaged Group or any other person;
(i) make a request for a list of the Company’s stockholders or for any books and records of the Company having pursuant to make a public announcement regarding any Section 220 of the actions described under clauses (a) through (f) hereofDelaware General Corporation Law; or
(ij) otherwise take enter into any discussion, negotiation, agreement, arrangement or understanding concerning any of the foregoing (other than this Agreement) or encourage, assist, solicit, seek, or seek to cause any person to undertake any action inconsistent with any of this Section 3. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 10.1.
10.2. Notwithstanding 3 shall not be deemed to restrict the provisions of Section 10.1, if at Engaged Group from: (i) communicating privately with the Board or any time the percentage of the Total Voting Power Beneficially Owned by the Investor Company’s officers regarding any matter, so long as such communications are not intended to, and its Affiliates would not reasonably be expected to, require any public disclosure of such communications, (together, the “Investor Parties”ii) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Section 3 or Section 6, or (iii) making any public disclosure necessary to comply with any Legal Requirement (as defined below). Furthermore, for the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions avoidance of Section 10.1doubt, (I) nothing in this Agreement shall prohibit or be deemed to restrict in any way the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result directors in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties under applicable law as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Cooperation Agreement (Quotient Technology Inc.), Cooperation Agreement (Engaged Capital LLC)
Standstill. 10.1. From the date hereof through the Standstill Termination Date, no Holder shall, and after the Closing, without the prior consent each Holder agrees to cause each member of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but ▇▇▇▇▇▇▇ Group not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly: (i) make, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seekin, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the Commission’s proxy rules of but without regard to the Commissionexclusion set forth in Rule 14a-1(l)(2)(iv)) or written consents with respect to vote or otherwise solicit consents from or conduct any Voting Stock referendum of shareholders, (ii) call, seek to call, direct or request any meeting of shareholders of the Company;
, (diii) initiate, make submit or submit be the proponent of any stockholder proposal, whether made proposal for consideration at any meeting of shareholders of the Company (including pursuant to Rule 14a-8 promulgated under the Exchange Act or otherwiseAct), or(iv) seek representation on the Board, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination removal of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations member of the Investor hereunder;
(f) except as expressly contemplated by this Agreement Board or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company; provided, however, that nothing herein will limit the ability of the ▇▇▇▇▇▇▇ Group to nominate a replacement director(s) in accordance with Section 1.02 hereof, (v) engage in any course of conduct with the purpose of causing other Company shareholders to vote contrary to the recommendation of the Board on any matter presented to them for a vote; provided however, such restriction shall not apply to any proposals that have been presented to shareholders for a vote prior to the Standstill Termination Date that are related to a merger, acquisition or disposition of all or substantially all of the assets of the Company or its Subsidiaries;
other business combination involving the Company, (gvi) make any request for any stockholder list or Company records, (vii) form, join join, encourage, influence, advise or in any way participate in a any “partnership, limited partnership, syndicate or other group” (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power securities of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor otherwise deposit or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and subject any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock securities of the Company Beneficially Owned by the Investor to any voting trust or its permitted assigns and transferees, (iii) disclosing the Investor’s intention arrangement or agreement with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such processthereof; provided, however, that if the Investor elects to participate in such process, the Preferred Directors restrictions shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares not apply to any Person who has publicly announced a “group” comprised solely of all or some lesser number of Holders, (viii) effect, seek, offer or propose any tender or exchange offer, merger, business combination, recapitalization, liquidation or other extraordinary transaction involving the Company or its subsidiaries, (ix) sell, offer whichor agree to sell, if consummatedthrough swap or hedging transactions or otherwise, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to voting rights decoupled from the stockholders underlying common stock of the Company within such time periodheld by the Holders to any third party, (bx) the execution by enter into any discussions, negotiations, arrangements or understandings with any Person other than the Company with respect to any of a definitive agreement which if consummated will result in a Change the foregoing, advise, assist, encourage or seek to persuade or influence others to take any action with respect to any of Control, the foregoing or announce any plan or proposal to take any action with respect to any of the foregoing or (cxi) publicly request any waiver or amendment of any of the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlforegoing provisions.
Appears in 2 contracts
Sources: Shareholder Agreement (Zix Corp), Shareholder Agreement (Rockall Emerging Markets Master Fund LTD)
Standstill. 10.1. From Subject to Section 2.2 through Section 2.4, Priceline covenants and after agrees with the ClosingCompany that, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor Priceline shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but Subsidiaries not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage alone or in a collared hedging transaction concert with others, without the prior written consent of the Common Stock following the conclusion Company, take any of the period actions set forth in Section 9;below (clauses (a) through (g) below, collectively, the “Priceline Standstill”):
(ca) effect or seekeffect, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate vote in favor of or authorize, encourage or solicit any other Person to effect or seekeffect, offer or propose (whether publicly or otherwise) to effect or participate in, in (i) any acquisition of any Voting Stock Equity Securities (or beneficial ownership thereof) or material assets of the Company or any of its Subsidiaries, including rights or options to acquire any Voting Stocksuch ownership, (ii) any tender or exchange offer, merger merger, consolidation, amalgamation, scheme of arrangement, or other business combination involving the Company, Company or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its Subsidiaries;
(b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used defined in the proxy rules of the CommissionSEC) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tovote, or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of of, any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies securities of the Company or any of its Subsidiaries;
(gc) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d13(d)(3) of the Exchange Act) in connection with any action contemplated by any of the foregoing;
(d) subject to the rights of Priceline and any of its Subsidiaries pursuant to this Agreement, the Transaction Agreements and the Marketing Agreement, otherwise act to seek to control, influence or change the management, Board, governing instruments, shareholders, policies or affairs of the Company or any of its Subsidiaries;
(e) enter into any negotiations or arrangements with any third party, or finance any third party, with respect to the Company involving any of the actions items described under foregoing; or
(f) make any public disclosure inconsistent with clauses (a) through (f) hereof;
(h) knowingly e), or take any action which would or that would reasonably be expected to result in require the Company having to make a any public announcement regarding any of disclosure with respect to the actions described under matters set forth in clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”e).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Standstill Agreement (Priceline Group Inc.), Standstill Agreement (Priceline Group Inc.)
Standstill. 10.1. From and after (a) Subject to Section 5.04(b), from the Closing, without Closing Date until the prior consent second anniversary of the BoardClosing Date (the “Standstill Period”), the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor Seller shall not, and shall cause not permit any of its directorsSubsidiaries (or any successor to Seller, officerswhether by merger, employeesconsolidation, representatives and Affiliates controlled by (but not under common control with) the Investor and any share exchange or other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor tobusiness combination transaction), directly or indirectly, engage to, without Buyer’s prior written consent, (i) acquire, agree to acquire, propose or offer to acquire, or facilitate the acquisition or ownership of, any Buyer Stock, other than as provided for in this Agreement, or any other securities or assets of Buyer or any of its Subsidiaries, (ii) deposit any shares of Buyer Stock in a collared hedging transaction voting trust or similar arrangement or subject any shares of Buyer Stock to any voting agreement, pooling arrangement or similar arrangement, or grant any proxy with respect to any shares of Buyer Stock to any Person or “group” (within the meaning of Section 13(d)(3) of the Common Stock following Exchange Act) (other than Buyer or a Person specified by Buyer in a proxy card provided to Seller by or on behalf of Buyer), (iii) enter, agree to enter, propose or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring, change in control transaction or other extraordinary transaction involving the conclusion Buyer or any of the period set forth in Section 9;
its Subsidiaries, (civ) effect or seekmake, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, participate or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate engage in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the CommissionSEC) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tovote, or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement person with respect to the voting of, any voting securities of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company Buyer or its Subsidiaries;
, (gv) call, or seek to call, a meeting of the shareholders of Buyer or initiate any shareholder proposal for action by shareholders of Buyer, (vi) form, join or in any way participate in a “group” (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect to any voting securities of Buyer, (vii) otherwise act, alone or in concert with others, to seek to Control or influence the Company involving management or the policies of Buyer, (viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (ix) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. Seller further agrees that, during the Standstill Period, neither Seller nor any of its Affiliates (nor any Person acting on behalf of or in concert with Seller or any of its Affiliates) shall, without the actions items described under clauses written consent of Buyer, (ax) through request Buyer, directly or indirectly, to amend or waive any provision of this Section 5.04(a) (fincluding this sentence) hereof;
or (hy) knowingly take any action which would or would reasonably be expected to result in the Company having that might require Buyer to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this Section 5.04(a) with Seller or any of the actions described under clauses (a) through (f) hereof; orits Affiliates
(ib) otherwise take The restrictions contained in Section 5.04(a) shall not apply to any brokerage, investment advisory, financial advisory, anti-raid advisory, merger advisory, financing, proprietary and third party asset management, derivatives transactions, investment activities, insurance service and activities, trading, market making, underwriting, arbitrage or cause any action inconsistent with other similar activities conducted by Seller or any of its Affiliates in the foregoing provisions ordinary course of this Section 10.1.
10.2. Notwithstanding their respective businesses; provided that the purpose of any such action by such parties is not to avoid the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”5.04(a).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Transaction Agreement (Morgan Stanley), Transaction Agreement (Invesco Ltd.)
Standstill. 10.1. From During the period beginning on the date of this Agreement and after ending on the Closingfiftieth (50th) anniversary of such date (such period, the “Standstill Period”), each Lakewood Party, without the prior consent written approval of Purchaser and of the Board, the Investor hereby agrees that until such time as the earlier to occur board of (x) it ceases to Beneficially Own 5% trustees or directors of the Total Voting Powerapplicable Covered Company contained in a resolution of such board, and (y) a Pending COC Event, the Investor shall not, and shall cause its each of their respective officers, directors, officers, employees, representatives Affiliates and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, associates not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing take any of the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor tofollowing actions, directly or indirectly, engage either alone or in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;concert with one or more other Person(s):
(ca) effect or seek(i) make, offer or initiate, propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, participate or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate engage in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are term is used in the proxy rules promulgated under the Exchange Act) of the Commissionany proxy, consent or other authority to vote any Covered Securities, (ii) or written consents with respect to any Voting Stock of the Company;
(d) make, initiate, make propose or submit in any way encourage, cause or attempt to cause the making by any Person of, any shareholder or stockholder proposal, nomination or other proposal (whether made pursuant to Rule 14a-8 promulgated under the Exchange Act or otherwise) or any other type of shareholder or stockholder referendum (binding or non-binding) with respect to any Covered Company, or(iii) make, except as expressly contemplated initiate, propose or in any way encourage, cause or attempt to cause the making by this Agreement any Person of a request for or the Certificate related to a request for a meeting or an action by written consent of Designations, otherwise seek the election shareholders or appointment to, or representation on, or the nomination stockholders of any candidate toCovered Company, the Board;
(eiv) deposit encourage, advise, influence or seek to advise or influence any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting or consenting of (or the withholding of authority of or abstention from voting or consenting) any Covered Security, including by publicly announcing or disclosing how any Lakewood Party or any other Person intends to vote or consent or cause to be voted or consented any Covered Security on any matter, (v) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in a Covered Company’s proxy card) for any meeting or action by written consent of shareholders or stockholders of a Covered Company or (vi) serve or agree to serve as a nominee of any Voting Stock that is inconsistent with the voting obligations holder of the Investor hereunderCovered Securities to stand for election as a trustee or director of any Covered Company;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gb) form, join or in any way participate in a “partnership, limited partnership, syndicate or other group” , including without limitation a group as defined under Section 13(d) of the Exchange Act with respect to any Covered Security or otherwise support or participate in any effort by a third party with respect to the matters set forth in this Section 4.2, or deposit any Covered Security in a voting trust or subject any Covered Security to any voting agreement or other arrangement of similar effect;
(within c) own, acquire, offer or propose to acquire, or agree to acquire (whether by purchase, tender or exchange offer, through the meaning acquisition of control of another Person, by joining in a partnership, limited partnership, syndicate or other group, including without limitation a group as defined under Section 13(d) of the Exchange Act, or otherwise) any Covered Security or Derivative Security or enter into any Contract for or with respect to any Derivative Security;
(d) effect, cause, seek to effect or cause, propose (whether publicly or otherwise), participate in, make any public statement with respect to or in any way support or assist any other Person to effect, cause, seek to effect or cause, propose or participate in, any (i) tender offer or exchange offer, merger, acquisition or other business combination involving any Covered Company or any of its Affiliates, (ii) form of business combination, acquisition or other similar transaction relating to a material amount of assets of any Covered Company or any Covered Company Securities, or (iii) form of restructuring, recapitalization or similar transaction with respect to any Covered Company or any of its Affiliates;
(e) control, influence or seek to control or influence the management, board of directors or trustees (or analogous governing body), policies, governance or affairs of any Covered Company, including by seeking, proposing or supporting a request for a waiver of, or exemption or similar action under, any provision of any organizational documents of any Covered Company;
(f) institute, solicit, assist or join, as a party, any Proceeding against or involving any Covered Company involving or any of its current or former directors, trustees, officers or agents in their capacity as such (including derivative actions) other than to enforce the provisions of this Agreement;
(g) enter into any Contract with, or advise, finance, assist or encourage, any other Person in connection with any of the actions items described under clauses foregoing as to any Covered Company, or make any investment in or enter into any Contract with, any other Person that engages, or offers or proposes to engage, in any of the foregoing as to any Covered Company; provided, however, that the Lakewood Parties may make an investment in a mutual fund or other collective investment entity, other than a Covered Company, which owns Covered Securities if their aggregate investment in such entity comprises less than five percent of the voting power of the equity of such entity and the Lakewood Parties do not influence or direct (aor attempt to influence or direct) through (f) hereofsuch entity’s ownership or voting of any Covered Securities;
(h) knowingly take make any action which would public statement or would reasonably be expected disclosures or otherwise take, or solicit, cause or encourage others to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause take, any action inconsistent with any of the foregoing provisions foregoing;
(i) request or propose any amendment or waiver, or consider the amendment or waiver of, any provision set forth in this Section 4.2; or
(j) either publicly or in any manner take any action that would be reasonably likely to lead to or require public disclosure of the types of matters set forth in this Section 4.2 by a Covered Company. ▇▇▇▇▇▇▇ shall not be in breach of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases 4.2 as a result of an Excluded Issuancea public company or future employer of which ▇▇▇▇▇▇▇ serves as a director, the Investor Parties may acquire trustee, officer, member or employee taking any action described in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance clauses (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, a) through (Ij) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement▇▇▇▇▇▇▇ did not initiate, propose, encourage, or (iv) from exercising its rights related to the Preferred Directors vote in the Certificate of Designations and this Agreement and the exercise by favor of, such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processaction.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 2 contracts
Sources: Share Purchase Agreement (Government Properties Income Trust), Share Purchase Agreement (Government Properties Income Trust)
Standstill. 10.1. From (a) During the period commencing on the date of this Agreement and after ending on the Closingdate of termination of this Agreement, each Bandera Party agrees that, without the prior written consent of the BoardCompany, which consent shall have been specifically expressed in a written resolution adopted by a majority vote of all Board members other than the Investor hereby agrees that until such time as the earlier to occur of (x) Bandera Directors, it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall will not, and shall will cause each of its directorsAffiliates, Associates (as such terms are defined in Section 12), officers, employees, representatives agents and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, Persons acting on its behalf not to, on its behalf, directly or indirectly:
(ai) by purchase or otherwise, acquire, offer or propose to acquire, or agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toacquire, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seekwhether by purchase, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger through the acquisition of control of another Person (as such term is defined in Section 12), by joining a partnership, limited partnership, syndicate or other business combination involving “group” (within the Companymeaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), or otherwise, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its SubsidiariesVoting Securities (as such term is defined in Section 12), or otherwise become the beneficial owner (iiias such term is defined in Section 12) of any Voting Securities; provided, that no such acquisition shall be deemed to occur solely due to a stock split, reverse stock split, stock dividend, cancellation or repurchase of Voting Securities, reclassification, reorganization or other transaction affecting the Voting Securities generally.
(ii) engage, or in any way participate, directly or indirectly, in any “solicitation” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) of proxies or consents (whether or not relating to the election or removal of directors); seek to advise, encourage or influence any Person with respect to the voting of any Voting Securities in any manner other than that recommended by a majority of the Board; initiate, propose or otherwise “proxiessolicit” (as such terms are used term is defined in Rule 14a-1(l) promulgated by the proxy rules SEC under the Exchange Act) stockholders of the Commission) or written consents with respect to any Voting Stock Company for the approval of the Company;
(d) initiate, make or submit any stockholder proposal, proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or otherwise; induce or attempt to induce any other Person to initiate any such stockholder proposal; or otherwise communicate or seek to communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act; provided, orthat this Section 4(b)(ii) shall not prohibit any Bandera Party from (A) voting, except in such manner as expressly contemplated it may determine in its sole discretion, any of the Voting Securities reported as being beneficially owned by Bandera Partners on the Bandera 13D; provided, however, this Agreement subparagraph (A) shall only be applicable if the Bandera Party has been advised in writing by its outside counsel that voting such Voting Securities based upon the recommendation of the Board would breach a fiduciary duty owed to its investors, (B) communicating with the Company or any officer or director of the Certificate Company in a non-public manner or (C) communicating with any Person who is an investor in any of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the BoardBandera Parties in a non-public manner;
(eiii) form, join or in any way participate in any “group” (within the meaning of Rule 13d-5 of Regulation 13D-G under the Exchange Act) with respect to any Voting Securities with any Person not identified in the Bandera 13D;
(iv) deposit any Voting Stock Securities in any voting trust or subject any Voting Stock Securities to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent Securities, except with the voting obligations of the Investor hereundera Bandera Party or as expressly set forth in this Agreement;
(fv) except as expressly contemplated by this Agreement seek to have called, or the Certificate of Designationscause to be called, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies any meeting of the Company or its Subsidiariesstockholders of the Company;
(gvi) form, join or in make any way participate in a “group” (within public demand to inspect the meaning of Section 13(d) books and records of the Exchange ActCompany, including pursuant to any statutory right that the Bandera Parties may have;
(vii) enter into any arrangements, understanding or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with respect to the Company involving any of the actions items described under clauses (a) through (f) hereofforegoing, or make any investment in, any other Person that, to the best knowledge of the Bandera Parties at the time such investment is made, engages, or offers or proposes to engage, in any of the foregoing;
(hviii) knowingly take make any action which would proposal (including the public disclosure or would reasonably be expected to result in the Company having to make a public announcement discussion of any proposal) or statement regarding any of the actions described under clauses foregoing, or publicly disclose any intention, plan or arrangement (awhether written or oral) through (finconsistent with the foregoing, or make or publicly disclose any request to amend, waive or terminate any provision of this Agreement; provided, that this Section 4(b)(viii) hereofshall not prohibit any Bandera Party from communicating with the Company or any officer or director of the Company in a non-public manner; or
(iix) otherwise take take, or cause or induce others to take, any action inconsistent with any of the foregoing provisions foregoing.
(b) During the period commencing on the date of this Section 10.1.
10.2. Notwithstanding Agreement and ending on the provisions of Section 10.1, if at any time the percentage date of the Total Voting Power Beneficially Owned 2009 Annual Meeting, each Bandera Party agrees that, without the prior written consent of the Company, which consent shall have been specifically expressed in a written resolution adopted by the Investor a majority vote of all Board members, it will not, and will cause each of its Affiliates Affiliates, Associates, officers, agents and other Persons acting on its behalf not to:
(togetheri) directly or indirectly enter into any agreement, the “Investor Parties”arrangement, understanding or contract (whether written or oral) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power with any other stockholder or director of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Company, the Common Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors other securities of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on other than the terms and conditions generally made available to the other participants set forth in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.this Agreement;
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement enter into any arrangements, understanding or commencement agreements (whether written or otherwise fails to oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing, or make a “stop-look-and-listen” communication any investment in, any other Person that, to the stockholders best knowledge of the Company within Bandera Parties at the time such time periodinvestment is made, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Controlengages, or offers or proposes to engage, in any of the foregoing; or
(ciii) take, or cause or induce others to take, any action inconsistent with any of the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlforegoing.
Appears in 2 contracts
Sources: Nomination Agreement (Bandera Partners LLC), Nomination Agreement (Peerless Systems Corp)
Standstill. 10.1. From Except as otherwise contemplated or permitted by this Agreement, during the period commencing on the date of this Agreement and after continuing to the Closingearlier of the Acceptance Time or the termination of this Agreement in accordance with its terms, MetLife agrees that neither it nor its Subsidiaries shall, and that it shall not authorize, permit or direct any of its Subsidiaries to, without the prior consent approval of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toRGA Special Committee, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(ca) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate assist any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to initiate, effect or participate inin or support, (i) any acquisition of any Voting Stock securities (or rights beneficial ownership thereof) or options to acquire material assets of RGA or any Voting Stockof its Subsidiaries, (ii) any tender or exchange offer, offer or merger or other business combination involving the Company, RGA or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its SubsidiariesAffiliates, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to RGA or any of its Subsidiaries; and (iv) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are defined or used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 Regulation 14A under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(eAct) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations shares of the Investor hereunder;
RGA Common Stock, (f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gb) form, join or in any way participate in a any “group” (within the meaning of Section 13(d) of the Exchange Actother than with respect to MetLife’s Affiliates) with respect to the Company involving any of the actions items described under clauses shares of RGA Common Stock, (ac) through otherwise act, either alone or in concert with others, to seek control of RGA, including by submitting any written consent or proposal in furtherance of the foregoing or calling a special meeting of RGA Shareholders, (fd) hereof;
publicly disclose any intention, proposal, plan or arrangement with respect to any of the foregoing, or (he) knowingly take any action which would action, or request any amendment or waiver hereof, that would reasonably be expected to result in the Company having require RGA to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors matters set forth in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlabove.
Appears in 2 contracts
Sources: Recapitalization and Distribution Agreement (Metlife Inc), Recapitalization and Distribution Agreement (Reinsurance Group of America Inc)
Standstill. 10.1. From and after (a) Each Investor agrees that, from the Closingdate of this Agreement until the expiration of the Standstill Period (as defined below), without the prior written consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% a majority of the Total Voting PowerBoard specifically expressed in a written resolution, neither it nor any of its Related Persons (as defined herein) will, and (y) a Pending COC Event, the Investor shall not, and shall it will cause each of its directors, officers, employees, representatives and Affiliates controlled by (but Related Persons not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, manner:
(i) propose or publicly announce or otherwise publicly disclose an intent to propose or enter into or agree to enter into, singly or with any acquisition of any Voting Stock other person, directly or rights or options to acquire any Voting Stockindirectly, (iix) any tender form of business combination or exchange offer, merger acquisition or other business combination involving the Company, any transaction relating to a material amount of its Subsidiaries assets or assets securities of the Company or any of its Subsidiaries constituting subsidiaries, (y) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (z) any form of tender or exchange offer for the Common Stock, whether or not such transaction involves a significant portion change of control of the consolidated assets Company;
(ii) engage in any solicitation of proxies or written consents to vote any voting securities of the Company and its SubsidiariesCompany, or (iii) conduct any “solicitation” of “proxies” (as such terms are used in the proxy rules non-binding referendum with respect to any voting securities of the Commission) Company, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies or written consents with respect to any Voting voting securities of the Company, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote any securities of the Company in opposition to any recommendation or proposal of the Board, except as otherwise permitted under Section 2(c) of 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 additional securities of the Company or any rights decoupled from the underlying securities of the Company representing in the aggregate (amongst all of the Investors and any Affiliate or Associate thereof) in excess of 15% of the shares of Common Stock outstanding;
(iv) seek to 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 Company, other than in a manner in accordance with Section 2;
(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 Investors 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 or Associate of the Investors (any person or entity not set forth in clauses (A)-(D) shall be referred to as a “Third Party”) that would knowingly result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any, beneficial, economic or other ownership interest representing in the aggregate in excess of 5% of the shares of Common Stock outstanding at such time;
(vi) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right, or other similar right (including, without limitation, any put or call option or “swap” transaction) with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of the Company;
(dvii) initiateexcept as otherwise set forth in this Agreement, take any action in support of or make any proposal or submit request that constitutes: (A) advising, controlling, changing or influencing the Board or management of the Company, including any stockholder proposalplans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Company’s Amended and Restated Certificate of Incorporation or Bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(viii) call or seek to call, or request the call of, alone or in concert with others, any meeting of stockholders, whether made pursuant to Rule 14a-8 under or not such a meeting is permitted by the Exchange Act Company’s Amended and Restated Certificate of Incorporation or otherwiseBylaws, orincluding, but not limited to, a “town hall meeting;”
(ix) seek, alone or in concert with others, representation on the Board, except as expressly contemplated permitted by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the BoardAgreement;
(ex) initiate, encourage or participate in any “vote no,” “withhold” or similar campaign;
(xi) deposit any Voting Common Stock in any voting trust or subject any Voting Common Stock to any arrangement or agreement with respect to the voting of any Voting Common Stock that is inconsistent with (other than any such voting trust, arrangement or agreement solely among the voting obligations members of the Investor hereunderGroup that is otherwise in accordance with this Agreement);
(fxii) except as expressly contemplated by this Agreement seek, or the Certificate of Designations, otherwise act, alone or in concert with othersencourage any person, to seek representation on submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to control the Company or influence seek, encourage or take any other action with respect to the management, Board election or policies removal of any directors of the Company or its Subsidiarieswith respect to the submission of any stockholder proposals (including any submission of stockholder proposals pursuant to Rule 14a-8 under the Exchange Act); provided, however, that nothing in this Agreement shall prevent the Investors or their Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2018 Annual Meeting so long as such actions do not create a public disclosure obligation for the Investors or the Company and are not publicly disclosed by the Investors or their Affiliates or Associates and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with the Investors’ normal practices in the circumstances;
(gxiii) form, join or in any other way participate in a any “group” (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect to the Common Stock (other than the Investor Group); provided, however, that nothing herein shall limit the ability of an Affiliate or Associate of the Investor Group to join the Investor Group following the execution of this Agreement, so long as any such Affiliate or Associate agrees to be bound in writing by the terms and conditions of this Agreement;
(xiv) demand a copy of the Company’s list of stockholders or its other books and records, whether pursuant to Section 220 of the Delaware General Corporation Law (the “DGCL”) or pursuant to any other statutory right;
(xv) commence, encourage, or support any derivative action in the name of the Company, or any class action against the Company involving or any of its officers or directors in order to, directly or indirectly, effect any of the actions items described expressly prohibited by this Agreement or cause the Company to amend or waive any of the provisions of this Agreement; provided, however, that for the avoidance of doubt, the foregoing shall not prevent any Investor from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against an Investor, or (C) exercising statutory dissenters, appraisal or similar rights under clauses the DGCL; provided, further, that the foregoing shall also not prevent the Investors from responding to or complying with a validly issued legal process in connection with litigation that it did not initiate, invite, facilitate or encourage, except as otherwise permitted in this Section (a) through (f) hereof3)(a)(xv);
(hxvi) knowingly take any action which would disclose publicly or would privately, in a manner that could reasonably be expected to result in become public any intent, purpose, plan or proposal with respect to the Company having Board, the Company, its management, policies or affairs, any of its securities or assets or this Agreement that is inconsistent with the provisions of this Agreement;
(xvii) enter into any negotiations, agreements or understandings with any person or entity with respect to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) foregoing, or advise, assist, knowingly encourage or seek to persuade any person or entity to take any action or make any statement with respect to any of the foregoing, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing foregoing;
(xviii) make any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company that would not be reasonably determined to trigger public disclosure obligations for any party;
(xix) take any action challenging the validity or enforceability of any of the provisions of this Section 10.1.
10.2. Notwithstanding 3 or publicly disclose, or cause or facilitate the provisions public disclosure (including, without limitation, the filing of Section 10.1any document with the SEC or any other governmental agency or any disclosure to any journalist, if at any time the percentage member of the Total Voting Power Beneficially Owned by the Investor and its Affiliates media or securities analyst) of, any intent, purpose, plan or proposal to either (togetherA) obtain any waiver or consent under, the “Investor Parties”) decreases as a result of an Excluded Issuanceor any amendment of, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms provision of this Agreement, or (ivB) from exercising take any action challenging the validity or enforceability of any provisions of this Section 3; or
(xx) otherwise take, or solicit, cause or encourage others to take, any action inconsistent with the foregoing.
(b) Notwithstanding the foregoing, the provisions of this Section 3 shall not limit in any respect the actions of any director of the Company (including, but not limited to, the New Director) in his or her capacity as such, recognizing that such actions are subject to 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 or Associates shall seek to do indirectly through the New Director anything that would be prohibited if done by any of the Investors or their Affiliates and Associates directly). For the avoidance of doubt, no provision in this Section 3 or elsewhere in this Agreement shall prohibit privately-negotiated transactions in the Common Stock solely between or among the Investors.
(c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act; the terms “beneficial owner” and “beneficial ownership” shall have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act; the terms “economic owner” and “economically own” shall have the same meanings as “beneficial owner” and “beneficially own,” except that a person will also be deemed to economically own and to be the economic owner of (i) all shares of Common Stock which such person has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional, and (ii) all shares of Common Stock in which such person has any economic interest, including, without limitation, pursuant to a cash settled call option or other derivative security, contract or instrument in any way related to the Preferred Directors in price of shares of Common Stock; the Certificate terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of Designations and this Agreement any kind or nature; and the exercise by such Preferred Directors of their rights and fiduciary duties term “Related Person” shall mean, as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender person, any Affiliates or exchange offer which, if consummated, would result in a Change Associates of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlperson.
Appears in 2 contracts
Sources: Cooperation Agreement (VIEX Capital Advisors, LLC), Cooperation Agreement (Immersion Corp)
Standstill. 10.1. From The Stockholders hereby agree that, from and after the Closing, without the prior consent of the Boarddate hereof, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, Stockholders and (y) a Pending COC Event, the Investor their Affiliates shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly, unless specifically requested by Parent or expressly contemplated by the Merger Agreement:
(a) unless otherwise agreed to by Parent's Board of Directors, acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise (including through a merger proposal, acquiretender offer or exchange offer), agree to acquire or offer to acquire Voting Stock any shares of Parent Stock, any securities or direct or indirect rights to acquire Parent Stock or any other securities of Parent, or any assets of Parent or any subsidiary or division thereof, other than any acquisition of options to acquire Voting StockParent Stock by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as compensation for his services as a director of Parent;
(b) enter into a short ofmake, or trade in any way participate in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction any "solicitation" of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “"proxies” " (as such terms are used in the proxy rules of the CommissionSEC) to vote (including by consent), or written consents seek to advise or influence any person or entity with respect to the voting of, any Voting Stock voting securities of Parent (including, without limitation, by making publicly known your position on any matter presented to stockholders), other than to recommend that stockholders of the CompanyCompany vote in favor of the Merger and the Merger Agreement;
(c) submit to Parent any stockholder proposal under Rule 14a-8 under the Exchange Act;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment public announcement with respect to, or representation onsubmit a proposal for, or the nomination offer of (with or without conditions) any candidate to, the Boardextraordinary transaction (including a merger or form of reorganization) involving Parent or its securities or assets;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “"group” " (within the meaning of as defined in Section 13(d13(d)(3) of under the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent connection with any of the foregoing provisions of this Section 10.1.foregoing;
10.2. Notwithstanding the provisions of Section 10.1, if at (f) seek in any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromway, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to have any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes provision of this Section 102.1 amended, a “Pending COC Event” meansmodified or waived; or
(g) otherwise take, directly or indirectly, any actions with the earlier purpose or effect of (a) avoiding or circumventing any provision of this Section 2.1 or which could reasonably be expected to have the date on which the Board (i) publicly recommends that the stockholders tender their shares effect of preventing, impeding, interfering with or adversely affecting its ability to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after perform its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlobligations under this Agreement.
Appears in 2 contracts
Sources: Standstill Agreement (Integrated Defense Technologies Inc), Standstill Agreement (Integrated Defense Technologies Inc)
Standstill. 10.1. From Each Seller and the persons signing as Additional Signatories below, each individually and on its own behalf, agree that, from and after the Closingexecution hereof, without neither such Seller nor such Additional Signatory nor any of their respective Affiliates or Associates (as defined in the prior consent Poison Pill) (the "Covered Persons") will, nor will they authorize or permit any of the Boardtheir respective representatives in their capacity as such to: (i) acquire, the Investor hereby agrees that until such time as the earlier offer to occur of (x) it ceases acquire, or agree to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfacquire, directly or indirectly:
(a) , by purchase or otherwise, acquireor become the Beneficial Owner of, agree to acquire any units or offer to acquire Voting Stock other interest in the Partnership or direct or indirect rights or options to acquire Voting Stock;
any units or other interest in the Partnership (bincluding in all cases equity securities and securities convertible into equity securities); provided, however, that neither Sellers nor the Additional Signatories shall be in violation of this subclause (i) enter into if a short Covered Person acquired, offered to acquire or agreed to acquire, or became the Beneficial Owner of, units or trade other interests in the Partnership without the knowledge of Sellers or the Additional Signatories, as the case may be; provided further, however, that if Sellers or the Additional Signatories become aware of such acquisition, offer or agreement, Sellers or the Additional Signatories shall use reasonable best efforts to, or cause the Covered Persons to, sell, transfer or otherwise dispose of such units or other interest in the Partnership; (ii) make, or in any way participate in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction any "solicitation" of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “"proxies” " (as such terms are used in the proxy rules of the Securities Exchange Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tovote, or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust person or subject any Voting Stock to any arrangement or agreement entity with respect to the voting of, any units (other than the Units beneficially owned by Sellers immediately after the Closing) or other interest in the Partnership; provided, however, that neither Sellers nor the Additional Signatories shall be in violation of this subclause (ii) if a Covered Person discusses the Partnership or voting matters related to any Voting Stock that is inconsistent units or other interest in the Partnership, (iii) 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, liquidation, dissolution or other extraordinary transaction of or involving units or other interest in the voting obligations of the Investor hereunder;
Partnership, (f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(giv) form, join or in any way participate in a “"group” " (within the meaning of as defined in Section 13(d13(d)(3) of the Securities Exchange ActAct of 1934) in connection with respect any units or other interest in the Partnership (other than to the Company involving any extent it may be deemed to be part of a "group" with Purchaser by virtue of having entered into this Agreement or by virtue of the actions items described under clauses Units which will continue to be or were previously beneficially owned by Sellers), or (av) through (f) hereof;
(h) knowingly take enter into any action which would written arrangements, understandings or would reasonably be expected to result agreement with, or actively advise, assist or encourage, any persons in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent connection with any of the foregoing; provided that the foregoing provisions shall not limit the right of Sellers to prosecute, in its discretion and at its sole cost and expense, the existing litigation entitled Gotham Partners, L.P. v. Hallwood Realty Partners, et al. (Civ. Act. No. 15754NC) and an▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇om. Irreparable harm shall be presumed if any Person breaches any term or provision of this Section 10.1.
10.2Article VI. Notwithstanding Accordingly, Sellers and the provisions Additional Signatories agree that Purchaser shall be entitled to an injunction and other equitable relief, without posting any bond or security in connection therewith, to prevent the breach of Section 10.1, if at any time the percentage this Article VI. The equitable remedies contemplated hereby shall not be deemed to be exclusive remedies for a breach of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% addition to all other remedies available at law or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processequity.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Standstill. 10.1. From ▇▇▇▇▇▇ agrees that beginning on the date of this Agreement and continuing for twenty-four (24) months after the Closingdate on which the parties terminate discussions concerning a potential transaction (the “Standstill Period”), without the prior consent neither Bidder nor any of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, affiliates or representatives and Affiliates controlled by (but not under common control with) the Investor and will in any other Affiliates that have received Company Confidential Information, not to, on its behalfmanner, directly or indirectly, unless specifically invited in writing by the Client’s Board of Directors:
(a) by purchase or otherwiseoffer, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer effect or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way knowingly assist, or knowingly facilitate assist any other Person person to effect or offer, seek, offer effect or propose (whether publicly or otherwise) to effect or participate in, in (i) any acquisition of beneficial ownership of any Voting Stock securities issued by Client or rights its affiliates or options to acquire any Voting Stock, of Client’s or its affiliates’ assets; (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company Client or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and affiliates; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar transaction with respect to Client or its Subsidiaries, affiliates; or (iiiiv) any “solicitation” of “proxies” (as such those terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or written refrain from voting, any voting securities issued by Client or to solicit any consents with respect to any Voting Stock of the Companystockholders of Client or its affiliates;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gb) form, join or in any way participate in a “group” (within as defined in the meaning Securities Exchange Act of Section 13(d) of the Exchange Act1934, as amended) with respect to any securities issued by Client or its affiliates, or otherwise seek, alone or together with other persons, to control or influence the Company involving any management, Board of the actions items described under clauses (a) through (f) hereofDirectors or policies of Client or its affiliates;
(hc) knowingly make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving Client or its securities or assets;
(d) take any action which would that could require Client or would reasonably be expected to result in the Company having its affiliates to make a public announcement regarding any of the actions described under types of transactions or matters set forth in paragraph (a);
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses (a) through ), (b), (c), or (d);
(f) hereofassist, advise, induce or encourage any other person to take any action of the type referred to in clauses (a), (b), (c), (d), or (e); or
(ig) otherwise take enter into any discussion or cause arrangements with any action inconsistent third party with respect to any of the foregoing provisions of this Section 10.1.
10.2foregoing. Notwithstanding ▇▇▇▇▇▇ also agrees during the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates Standstill Period not to request Client (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromemployees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Bidder further agrees that unless otherwise directed by Client in writing (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance all communications with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during Client regarding a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company)Possible Transaction, (ii) following the conclusion of the period set forth in Section 9requests for additional information, consummatingfacility tours, solicitingor management meetings, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention discussions or questions regarding procedures with respect to the voting of any Voting Stock Beneficially Owned a Possible Transaction, will be submitted or directed by it so long Bidder or its representatives only to FOCUS Investment Banking LLC (“FOCUS”), as such voting intention is consistent with the terms of this AgreementClient’s financial advisor, or (iv) from exercising its rights related to the Preferred Directors a person or persons designated in the Certificate of Designations and this Agreement and the exercise writing by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4FOCUS. For purposes The provisions of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) 8 shall terminate upon the public announcement by the Company Client that it recommends has entered into a definitive agreement providing for the Possible Transaction with any transaction that, if consummated, would result in a Change person or persons. The expiration of Controlthis Section 8 shall not terminate or otherwise affect any of the other provisions of this letter agreement.
Appears in 1 contract
Sources: Confidentiality Agreement (TSR Inc)
Standstill. 10.1. From (a) Each Investor agrees with the Company, severally and after not jointly, that during the Closing, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) Standstill Period it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall it will cause each of its directors, officers, employees, representatives and controlled Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:indirectly (including through any Representative of such Investor), in any manner, alone or in concert with others (unless expressly permitted in writing by the Board):
(ai) by purchase or otherwise, acquire, cause to be acquired, or offer, seek or agree to acquire acquire, whether by purchase, tender or offer to acquire Voting Stock exchange offer, through the acquisition of control of another Person, by joining or forming a partnership, limited partnership, syndicate or other group (including any Group), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), Beneficial Ownership of, or any economic interest in, any equity securities of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting StockSecurities or securities convertible into or exchangeable for any such Voting Securities);
(ii) acquire, cause to be acquired, enter into any agreement with respect to or offer, seek or agree to acquire, whether by purchase or otherwise, any Synthetic Position;
(iii) solicit any proxy, consent or other authority to vote or conduct any other referendum (binding or nonbinding) (including any “withhold”, “vote no” or similar campaign) with respect to, or from the holders of, Voting Securities; or
(iv) advise, assist, knowingly encourage or direct any Person to do, or to advise, assist, knowingly encourage or direct any other Person to do, any of the foregoing.
(b) enter into a short ofThe restrictions in this Section 10 shall terminate automatically with respect to each Investor upon the expiration of the Standstill Period.
(c) Notwithstanding the foregoing, the Investors may make one or trade inmore Acquisitions of Common Stock directly from the Company during the Standstill Period.
(d) Notwithstanding the foregoing, derivative securities representing each of the right to vote or economic benefits Investors that beneficially owns more than 10.0% of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction aggregate outstanding shares of the Common Stock following immediately prior to any Acquisition of Common Stock may make one or more Acquisitions of Common Stock in open market purchases during the conclusion period subsequent to the Closing Date and prior to the termination of the period set forth Standstill Period in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) an amount not to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of exceed 600,000 shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as each such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processInvestor.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Standstill. 10.1. From Each Investor agrees that, during the period commencing on the date of this Agreement and after the Closing, without the prior consent of the Board, the Investor hereby agrees that until such time as ending on the earlier to occur of (xA) it ceases to Beneficially Own 5% of the Total Voting PowerOctober 1, 2024 and (yB) a Pending COC Eventthe date that is thirty (30) calendar days prior to the deadline for the submission of stockholder director nominations for the 2025 Stockholder Meeting (the “Standstill Period”), the Investor shall it will not, and shall it will cause each of its directorsAffiliates, officers, employees, representatives Associates and Affiliates controlled by (but Family Members not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assistmanner, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, acting alone or in concert with others, take any of the following actions, or advise, recommend, request, encourage, solicit, influence or induce any other person to seek representation on take any of the following actions, or announce any intention to control take any of the following actions:
(1) acquire, announce an intention to acquire, offer or influence the managementpropose to acquire, Board agree to acquire or policies acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting stock of the Company generally on a pro rata basis), directly or its Subsidiaries;
(g) formindirectly, join by purchase, tender or in any way participate in exchange offer, through the acquisition of control of another person, by joining or maintaining a “group” (within the meaning of Section 13(d)(3) of the Exchange Act (as defined below), through swap or hedging transactions or otherwise, beneficial ownership of any voting stock of the Company in excess of an amount equal to 19.99% of the Company’s total outstanding voting power; provided, however, that the Investors will not be prevented from acquiring or agreeing to acquire future or existing convertible bonds of the Company. For the avoidance of doubt, the Investors shall not convert such convertible bonds of the Company if the number of shares of common stock to be issued pursuant to such conversion would result in the holder beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act), in excess of 19.99% of the Company’s total outstanding voting power;
(2) other than in accordance with the recommendations of the Board, engage, directly or indirectly, in any “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies or consents or otherwise become a “participant in a solicitation” (as such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) with respect to the election or removal of directors of the Company or any other matter or proposal;
(3) recommend, request, induce, attempt to induce, seek to advise, encourage or influence any other person with respect to (i) pursuing any change in, or attempting to influence, the Company’s operations, business, corporate strategy or policies or (ii) the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum with respect to the Company, whether binding or non-binding (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter), provided that nothing shall limit the giving by the Investors or their Affiliates of a proxy or consent in respect of any matter so long as the voting of the shares of Common Stock owned thereby are voted in accordance with the terms of this Agreement where applicable;
(4) grant a proxy with respect to the voting of any voting stock of the Company to any person other than to the Board or persons appointed as proxies by the Board;
(5) call, seek to call, or to request the call of, a special meeting of the Company’s stockholders (or the setting of a record date therefor);
(6) make a request for or demand an inspection of a list of the Company’s stockholders or any books and records of the Company or any of its subsidiaries under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for stockholder access to books and records;
(7) submit any stockholder proposal pursuant to Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise, or any notice of nomination or other business for consideration at a Stockholder Meeting, or nominate any candidate for election to the Board;
(8) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its subsidiaries or any of their respective current or former directors or officers (including derivative actions), other than to enforce the provisions of this Agreement;
(9) form, join in, maintain or in any other way participate in a “partnership, limited partnership, syndicate or other “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting stock of the Company (other than a “group” that consists solely of all or some of the persons parties to this Agreement);
(10) deposit any shares of voting stock of the Company in a voting trust or similar arrangement or subject any shares of voting stock of the Company to any voting agreement or pooling arrangement, other than any such voting trust, arrangement or agreement solely among the Investors and otherwise in accordance with this Agreement;
(11) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board not in violation of the terms of this Agreement;
(12) except as specifically provided in Section 1 of this Agreement, seek to place a representative or other Affiliate, Associate or nominee on the Board or seek the removal of any member of the Board (including through any “withhold” or “vote no” or similar campaign) or any change in the size or composition of the Board or the committees of the Board;
(13) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the actions items described under clauses (a) through (f) hereofassets or businesses of the Company or any of its subsidiaries or any rights or options to acquire any such assets or business from any person;
(h14) knowingly take other than at the express written request of the Board, seek, propose, or make any action which statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company or its subsidiaries, change or amendment to the Charter or Bylaws, change in capital structure, recapitalization, restructuring, dividend or distribution or change in dividend or distribution policy, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company or any of its subsidiaries; provided, however, nothing herein shall limit the ability of the Investors to disclose, publicly or otherwise, how it intends to vote with respect to any announced tender offer, exchange offer, merger, consolidation, business combination or other change-of-control transaction that is being submitted for the approval of stockholders, and the reasons therefor, so long as any such activity is otherwise in compliance with the requirements of this Agreement;
(15) sell or otherwise transfer its shares of voting stock of the Company, other than in open market sale transactions where the identity of the purchaser is not known and in underwritten widely dispersed public offerings, to any person that, to the Investors’ knowledge (after due inquiry in connection with a private, non-open market transaction, it being understood that such knowledge shall be deemed to exist with respect to any publicly available information, including information in documents filed with the SEC), would result in such person, together with its Affiliates, Associates and Family Members, owning, controlling or otherwise having any beneficial or other ownership interest in the aggregate of more than 4.9% of the Company’s total outstanding voting power at such time or would increase the beneficial ownership interest of any person who, together with its Affiliates, Associates and Family Members, has a beneficial or other ownership interest in the aggregate of more than 4.9% of the Company’s total outstanding voting power at such time;
(16) disclose publicly, or privately in a manner that could reasonably be expected to result become public, any intention, plan or arrangement inconsistent with the foregoing or publicly request or advance any proposal to amend, modify or waive the terms of this Agreement; provided that the Investors may make confidential requests to the Board to amend, modify or waive any provision of this Section 3, which the Board may accept or reject in its sole discretion, so long as any such request is not publicly disclosed by the Company having Investors and is made by the Investors in a manner that could not reasonably be expected to make a require the public announcement regarding disclosure of such request by the Company, the Investors or any of the actions described under clauses (a) through (f) hereofother person; or
(i17) otherwise take participate in any negotiations, discussions, agreement, arrangement or cause understanding with any action inconsistent with person concerning any of the foregoing provisions (other than this Agreement) or encourage or solicit any person to undertake any of this Section 10.1.
10.2the foregoing activities. Notwithstanding the provisions of Section 10.1foregoing, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, Investors from (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance communicating privately with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, howeverBoard, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power Chief Executive Officer of the Company), (ii) following the conclusion Chief Financial Officer of the period set forth in Section 9Company, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer the head of the capital stock Company’s investor relations team or, if and to the extent made available to the Investors by the Company, other senior executives of the Company Beneficially Owned by the Investor or its permitted assigns and transfereesregarding any matter, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms communications are not intended to, and would not reasonably be expected to, require any public disclosure of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Companycommunications; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails making or sending private communications to recommend then-existing investors in the Investors or any of their Affiliates, provided that stockholders reject such an offer within 10 business days after its public announcement any statements or commencement communications (1) include only publicly available information, (2) are not reasonably expected to be publicly disclosed and are understood by all parties to be confidential communications and (3) are not intended to, and would not reasonably be expected to, effect, or influence any other person to undertake or suggest to others that they undertake, any of the actions prohibited by Section 3 or otherwise fails inconsistent with this Agreement; or (iii) complying with, to make the extent required thereby, any subpoena or other compulsory legal process or responding to a “stop-look-and-listen” communication request for information from any governmental or regulatory authority with jurisdiction over the Investors; provided that the Investors (x) use commercially reasonable efforts to ensure that any such information disclosed is afforded confidential treatment and (y) provide prompt notice to the Company in advance of such disclosure. Notwithstanding anything contained in this Agreement to the contrary, the Standstill Period shall automatically terminate if the Company enters into a definitive agreement with respect to, or the Board has recommended that the stockholders of the Company within such time period, (b) the execution by the Company of accept a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company tender offer that it recommends any transaction thatwould, if consummated, would result in constitute, a Change change of Controlcontrol of the Company, unless such transaction has been approved and/or recommended by the Board on a unanimous basis (inclusive of the New Director); provided that, if any such transaction is terminated without being completed, the Standstill Period shall again apply upon such termination.
Appears in 1 contract
Standstill. 10.1. From and For a period of twelve (12) months after the Closingdate of this Agreement, without unless it shall have been specifically invited in writing by the prior consent other Party, neither Party nor any of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and affiliates will in any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor tomanner, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(ci) effect or seek, offer or propose (whether publicly or otherwiseotherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, facilitate or knowingly facilitate encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwiseotherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in: (a) the acquisition of, or obtaining any economic interest in, any right to direct the voting or disposition of, or any other right with respect to, any securities, bank debt, liabilities, claims or obligations of the other Party or any of its affiliates (i) or any acquisition rights, options or other securities convertible into or exercisable or exchangeable for such securities, bank debt, liabilities, claims or obligations or any obligations measured by the price or value of any Voting Stock securities of the other Party or rights any of its affiliates, including without limitation any swaps or options other derivative arrangements (“Derivative Securities”)), in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such Party) pursuant to acquire any Voting Stockagreement, arrangement or understanding (iiwhether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (b) any tender or exchange offer, merger or other merger, consolidation, business combination involving the Company, any or acquisition or disposition of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and other Party or any of its Subsidiariesaffiliates; (c) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its affiliates; or (iiid) any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules Regulation 14A of the Commission) Exchange Act), become a “participant” in any “election contest” (as such terms are defined in Rule 14a-11 of the Exchange Act), or written consents initiate, propose, encourage or otherwise solicit stockholders of the other Party for the approval of any stockholder proposals with respect to the other Party or seek to advise or influence any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement person with respect to the voting of any Voting Stock that is inconsistent with the voting obligations securities of the Investor hereunder;
other Party; (fii) except as expressly contemplated by this Agreement form, join or in any way participate in a group with respect to the Certificate common shares or any other voting securities of Designations, the other Party or any securities convertible into common shares or any other voting securities of the other Party or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of Directors or policies of the Company other Party or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within to obtain representation on the meaning Board of Section 13(d) Directors of the Exchange Actother Party; (iv) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to might result in the Company having other Party being obligated to make a public announcement regarding any of the actions described under clauses types of matters set forth in this paragraph; (av) through (f) hereof; or
(i) otherwise take enter into any discussions, arrangements, understandings or cause contracts with any action inconsistent third party with respect to any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1foregoing; or (vi) disclose (whether or not publicly) any intention, if at plan or arrangement regarding any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates matters referred to in this paragraph. Each Party also agrees during such twelve (together12) month period not to request, or solicit or induce another person to request, the “Investor Parties”) decreases as a result other Party (or any of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”its Representatives).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiringto amend, agreeing to acquire waive or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 publicize any provision of this AgreementSection 11 (including this sentence). In the event that OMP enters into a definitive acquisition agreement with a party other than the Company providing for the acquisition, (w) pursuant to the conversion directly or indirectly, of not less than a majority of the Shares outstanding voting equity of OMP in accordance with the Certificate election of Designationsdirectors or all or substantially all of the assets of OMP and its subsidiaries on a consolidated basis (an “Acquisition”), then notwithstanding any provision of this Section 11, (x) pursuant the Company may, without the separate invitation, consent or authorization of OMP, make (A) a non-public, private Acquisition proposal to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 OMP for consideration by the Board of Directors of OMP or (zB) during a Permitted Purchase Period public Acquisition proposal (provided, howeverthat, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to this clause (B), such proposal shall first be made privately to the voting Board of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent Directors of OMP and shall not be made publicly unless and until either (I) the Board of Directors or OMP fails to enter into good faith negotiations with the terms Company within 3 business days after receipt of this Agreement, such proposal or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who or OMP has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of entered into negotiations with the Company within such time 3 business day period, OMP has failed to terminate the definitive acquisition agreement within 10 days after receipt of such proposal) and (by) the execution by restriction on the use of Confidential Information provided in Section 2(b) of this Agreement shall not prevent the Company from making an Acquisition proposal pursuant to the foregoing clause (A) or (B). Notwithstanding anything to the contrary herein, acquisitions for investment purposes only of exchange-traded funds by a definitive agreement which if consummated will result in a Change of ControlParty, that own or later acquire any economic interest in, any right to direct the voting or disposition of, or (c) any other right with respect to any securities of the public announcement by the Company that it recommends other Party or any transaction thatof its subsidiaries, if consummated, would result in shall not constitute a Change breach of Controlthis Section 11.
Appears in 1 contract
Sources: Confidentiality, Non Competition and Non Solicitation Employment Agreement
Standstill. 10.1. From and after (a) During the ClosingStandstill Period, without unless otherwise approved by the prior consent of Board or by the BoardCompany, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor H▇▇▇▇▇▇ shall not, and shall cause its directors, officers, employees, representatives his Associates and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, Representatives not to, on its behalf, directly or indirectly:
(ai) make any public 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 a material amount of assets or securities of the Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (C) any form of tender or exchange offer for shares of Common Stock or other Voting Securities, whether or not such transaction involves a Change of Control (as defined below) of the Company;
(ii) engage in, or assist in the engagement in, any solicitation of proxies or written consents to vote any Voting Securities of the Company, 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 Exchange Act, to vote any securities of the Company (including by initiating, encouraging or participating in any “withhold” or similar campaign);
(iii) purchase or otherwise, otherwise acquire, or offer, seek, propose or agree to acquire or offer to acquire Voting Stock or acquire, ownership (including beneficial ownership) of any securities of the Company, any direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short ofany such securities, or trade in, any derivative securities representing the right to vote or economic benefits of Voting Stock contracts or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or instruments in any way knowingly assistrelated to the price of shares of Common Stock, or knowingly facilitate any other Person to effect assets or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock liabilities of the Company;
(div) initiatesell, make offer or submit any stockholder proposalagree to sell directly or indirectly, whether made pursuant to Rule 14a-8 under the Exchange Act through swap or hedging transactions or otherwise, orthe securities of the Company or any rights decoupled from the underlying securities held by H▇▇▇▇▇▇ to any person not (A) a party to this Agreement, (B) a member of the Board, (C) an officer of the Company or (D) an Affiliate of any Party (any person not set forth in clauses (A) through (D) shall be referred to as a “Third Party”) that would knowingly (after due inquiry) result in such Third Party, together with its Affiliates, owning, controlling or otherwise having any, beneficial or other ownership interest representing in the aggregate in excess of 4.9% of the shares of Common Stock outstanding at such time;
(v) take any action in support of or make any proposal or request that constitutes or would result in: (A) advising, controlling, changing or influencing any director or the management of the Company, including, but not limited to, any plans or proposals, and/or consenting to the calling of any special meeting of stockholders to effect such plans or proposals, to change the number or term of directors or to fill any vacancies on the Board, except as set forth in this Agreement, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of 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 Restated Certificate of Incorporation of the Company, as amended, and/or the Amended and Restated By-Laws of the Company (together, the “Governing Materials”), 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;
(vi) act by making public announcements or speaking to reporters or members of the media (whether “on the record” or on “background” or “off the record”), to seek to influence the Company’s stockholders, management or the Board with respect to the Company’s policies, operations, balance sheet, capital allocation, marketing approach, business configuration, Extraordinary Transactions, or strategy or to obtain representation on the Board or seek the removal of any officer or director in any manner, except as expressly contemplated permitted by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the BoardAgreement;
(evii) 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 Governing Materials, including a “town hall meeting”;
(viii) deposit any shares of Voting Stock Securities in any voting trust or subject any shares of Voting Stock Securities to any arrangement or agreement with respect to the voting of any shares of Voting Stock that Securities, the intention of which is inconsistent with the voting obligations to circumvent any of the Investor hereunderrestrictions on H▇▇▇▇▇▇ under this Agreement;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gix) form, join or in any other way participate in a any “group” (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect to any Voting Security;
(x) 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;
(xi) demand pursuant to Delaware Court of Chancery Rule 23.1 or any other like statutory or regulatory provisions that the Company involving take any action with respect to its 2019 Stock Incentive Plan, any options awards or exercises made thereunder, any votes cast or to be cast in relation thereto or any other action with respect to a compensation plan or proposal made by the Company;
(xii) commence, encourage or support any derivative action in the name of the Company or any class action against the Company or any of its officers or directors, in each case with the intent of circumventing the provisions of this Section 9, or take any action challenging the validity or enforceability of any of the actions items described under clauses provisions of this Section 9; provided, however, that the foregoing shall not prevent H▇▇▇▇▇▇ from (aA) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against H▇▇▇▇▇▇, or (C) responding to or complying with a validly issued legal process that neither H▇▇▇▇▇▇ nor any of his Affiliates initiated, encouraged or facilitated;
(xiii) make any request or submit any proposal to amend or waive the terms of this Section 9 other than through (f) hereofnon-public communications with the Company that would not be reasonably likely to trigger public disclosure obligations for any Party;
(hxiv) knowingly take any action which would comment publicly about or would disclose in a manner that could reasonably be expected to result in become public any intent, purpose, plan or proposal with respect to any transactions involving the Company having to make a public announcement regarding Company, any director or the Company’s management, policies, strategy, operations, financial results or affairs, any of its securities or assets or this Agreement that is inconsistent with the actions described under clauses provisions of this Agreement;
(axv) through (f) hereofmake any inquiries about, or otherwise attempt to directly or indirectly obtain any information, whether from the Independent Compensation Consultant or otherwise, relating to the Services Agreement or any work or services related thereto or otherwise provided by the Independent Compensation Consultant; or
(ixvi) enter into any discussions, negotiations, agreements or understandings with any person with respect to any action H▇▇▇▇▇▇ is prohibited from taking pursuant to this Section 9, or advise, assist, knowingly encourage or seek to persuade any person to take any action or make any statement with respect to any such action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing foregoing.
(b) The provisions of this Section 10.1.
10.29 shall 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 such director’s fiduciary duties to the Company and its stockholders and the Company Policies (it being understood and agreed that neither H▇▇▇▇▇▇ nor any of his Affiliates shall seek to do indirectly through the New Director anything that would be prohibited if done by H▇▇▇▇▇▇ or his Affiliates). Notwithstanding the The provisions of this Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of 9 shall also not prevent H▇▇▇▇▇▇ from freely voting his shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”except as otherwise provided in Section 6 hereto).
10.3. Notwithstanding (c) During the provisions Standstill Period, H▇▇▇▇▇▇ shall refrain from taking any actions which could have the effect of Section 10.1encouraging, (I) nothing in this Agreement shall prohibit assisting or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any influencing other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time periodor any other persons to engage in actions which, if taken by H▇▇▇▇▇▇, would violate this Agreement.
(bd) Notwithstanding anything contained in this Agreement to the execution by contrary, the Company provisions of a definitive agreement which if consummated will result in Sections 1, 6 and 7 of this Agreement shall automatically terminate upon the consummation of a Change of Control, or (c) the public announcement Control agreed to by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlBoard and involving the Company.
Appears in 1 contract
Sources: Cooperation Agreement (Cytrx Corp)
Standstill. 10.1. From and after (a) Except, in the Closingcase of clauses (i)(A), without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (xi)(B) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) i)(C), as expressly contemplated by Article 9 of this Agreement, during the period beginning on the date hereof and ending on the date on which a Pending COC EventParent’s Parent Aggregate Percentage Interest goes below the Lower Threshold, the Investor such Parent shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, Parent Entities not to, on its behalfin any manner, directly or indirectly:
: (a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(ci) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect participate in, facilitate or cause or participate in or in any way knowingly assist, or knowingly facilitate encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (iA) any acquisition of any Voting Stock securities (or beneficial ownership thereof or economic interests therein), or rights or options to acquire any Voting Stocksecurities (or beneficial ownership thereof or economic interests therein), of the other Parent, or any assets of the other Parent or any of its Subsidiaries (including securities of or held by such Subsidiaries) constituting a significant portion of the consolidated assets of such other Parent, (iiB) any tender offer or exchange offer, merger merger, consolidation or other business combination involving the Companyother Parent or any of its Subsidiaries, or any assets of the other Parent or any of its Subsidiaries (including securities of or assets of the Company or its Subsidiaries held by such Subsidiaries) constituting a significant portion of the consolidated assets of the Company and other Parent, (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Parent or any of its Subsidiaries, Subsidiaries or (iiiD) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or written consents with respect to vote any Voting Stock voting securities of the Company;
(d) initiateother Parent or any of its Subsidiaries, make including soliciting consents or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement taking other action with respect to the voting calling of any Voting Stock that is inconsistent with the voting obligations a special meeting of the Investor hereunder;
stockholders of the other Parent or any of its Subsidiaries; (fii) except form, join or in any way participate in a “group” (as expressly contemplated by this Agreement or defined under the Certificate of Designations, Exchange Act) with respect to the other Parent; (iii) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board board of directors or policies of the Company other Parent or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within to obtain representation on the meaning board of Section 13(d) directors of the Exchange Actother Parent; (iv) disclose or direct any Person to disclose, any intention, plan or arrangement inconsistent with respect the foregoing; (v) advise, assist or encourage or direct any Person to the Company involving advise, assist or encourage any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result other Persons in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent connection with any of the foregoing; or (vi) request a waiver or amendment of any of the foregoing provisions of this Section 10.1.
10.2clauses (i) through (v). Notwithstanding the foregoing, a Parent’s chief executive officer may make a non-public, confidential, oral, non-binding proposal regarding a transaction of the type described in clauses (i)(A), (B) or (C) of the preceding sentence to the other Parent’s chief executive officer, provided that the Parent providing such proposal (1) does not make such proposal for the purpose of causing the receiving Parent to make public disclosure of such proposal and (2) immediately withdraws such proposal and does not further pursue such proposal or any proposal that is substantially similar to such proposal if the other Parent’s board of directors has been apprised of such proposal and such Parent is not interested in exploring any such transaction. 83
(b) A Parent and its other Parent Entities shall be released from the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”12.1(a) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company event that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiringthe other Parent enters into, agreeing or publicly announces an intention to pursue, one or more related transactions or agreements providing for the acquisition by a third party of more than 50% of its voting securities or all or substantially all of its assets or (ii) (A) a tender or exchange offer is commenced by a third party to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 2550% or more of the Total Voting Power outstanding voting securities of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; other Parent and (IIB) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of Parent (a) the date on which the Board (i1) publicly recommends that its stockholders accept such offer or (2) (x) does not within ten Business Days publicly recommend that its stockholders reject such offer or (y) publicly recommends that its stockholders reject such offer but subsequently publicly withdraws such recommendation. If the stockholders tender their shares to any Person who has publicly announced Parent that is the subject of a tender or exchange offer whichpublicly recommends that its stockholders reject the offer, if consummated, would result in a Change of Control, or such Parent may not (iiI) fails to subsequently publicly recommend that its stockholders accept such offer or publicly withdraw its recommendation that its stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication unless such offer remains open for at least 20 Business Days following such change in recommendation (either pursuant to the stockholders terms of such offer or by action of such Parent preventing its consummation during such 20-Business Day period) or (II) prior to the end of such 20-Business Day period, enter into an agreement providing for the acquisition of more than 50% of its outstanding voting securities or all or substantially all of its assets by the Person making such offer unless such agreement provides that the acquisition contemplated by it may not be consummated for at least another 20 Business Days from the date such agreement is executed and such agreement allows the Parent that is the subject of the Company within tender offer or exchange offer to provide information to and participate in discussions or negotiations with the other Parent and its representatives regarding, and to terminate such time periodagreement without the payment of any fee or other amount (other than a break-up or similar fee not exceeding 1% of the equity value of such Parent) in order to enter into an agreement with the other Parent or any of its Parent Entities providing for, (b) the execution acquisition by the Company other Parent or its Parent Entities of a definitive agreement which if consummated will result in a Change more than 50% of Control, the outstanding voting securities or (c) all or substantially all of the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change assets of Control.such Parent. 84
Appears in 1 contract
Sources: Limited Liability Company Agreement (McGraw-Hill Companies Inc)
Standstill. 10.1. From and after the Closing, without the prior consent of the Board, the Investor Recipient hereby agrees that until such time as that, for a period of two years from the earlier to occur of date hereof, Recipient and its Affiliates will not (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause neither Recipient nor its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short ofwill assist, or trade inprovide or arrange financing to or for, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor others in order to), directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, acting alone or in concert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) acquire or agree, offer, seek or propose to seek representation on acquire (or request permission to control or influence the managementdo so) ownership (including, Board or policies of the Company or its Subsidiaries;
(g) formbut not limited to, join or beneficial ownership as defined in any way participate in a “group” (within the meaning of Section 13(d) of Rule 13d-3 under the Exchange Act) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or any option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities or otherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain representation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies or consents with respect to the Company involving any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of Protection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the actions items described under clauses foregoing; (av) through advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; (fvi) hereof;
propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Protection One or any of its subsidiaries; (hvii) knowingly disclose any intention, plan or arrangement inconsistent with any of the foregoing; or (viii) seek to have Protection One amend or waive any provision of this Section 6. Recipient agrees to advise Protection One promptly of any inquiry or proposal made to it with respect to any of the foregoing, unless Recipient declines to discuss such inquiry or proposal with the party making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 6, neither it nor any of its Affiliates will, without the written consent of Protection One, take any initiative or other action which would with respect to Protection One or would any of the subsidiaries of Protection One that is reasonably be expected likely to result in the Company having require Protection One to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take such initiative or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.action,
Appears in 1 contract
Sources: Confidentiality Agreement
Standstill. 10.1. From Gondi and The Arthi Trust agree that, for a period of two (2) years after the Closingdate ▇▇ ▇▇is Agreement, without the prior written consent of the BoardCompany, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, Gondi and (y) a Pending COC Event, the Investor shall The Arthi Trust will not, and shall will cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, each of his affiliates not to, on its behalfs▇▇▇▇▇ or as part of a group, directly or indirectly, through one or more intermediaries or otherwise to:
(a) by purchase or otherwisemake, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition "solicitation" of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “"proxies” " (as such terms are defined or used in the proxy rules Regulation 14A of the CommissionSecurities Exchange Act of 1934, as amended (the "Exchange Act")) or written consents with respect to any Voting Stock Securities (as defined below) (including by the execution of the Company;
(d) initiateaction by written consent), make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock become a "participant" in any voting trust "election contest" (as such terms are defined or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or used in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) Rule 14a-11 of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1Company, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases stand for election as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power director of the Company), (ii) following the conclusion accept appointment as an officer or director of the period set forth in Section 9Company, consummatingseek to advise, soliciting, offering, seeking to effect and negotiating with encourage or influence any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor person or its permitted assigns and transferees, (iii) disclosing the Investor’s intention entity with respect to the voting of any Voting Stock Beneficially Owned Securities or demand a copy of the stock ledger, list of stockholders or other books and records of the Company; provided that this Section 4(a) shall not be deemed to prohibit Gondi from exercising any rights as a stockholder of the Company to inspect the corporate records of the Company under applicable law in the event Gondi shall become the subject of any investigation or legal proceeding by it so long as a governmental authority or agency and he reasonably believes such voting intention is consistent with documents are relevant to his defense in such an investigation or legal proceeding;
(b) participate in or encourage the terms formation of any group which owns or seeks or offers to acquire beneficial ownership of securities of the Company or any assets owned by the Company or rights to acquire such securities or which seeks or offers to effect control or to effect a change of control of the Company or for the purpose of circumventing any provisions of this Agreement;
(c) otherwise act, alone or in concert with others (including by providing financing to another party), to seek or offer to control, to change or to change the control of, in any manner, the management, board of directors or policies of the Company; or
(d) solicit, seek or offer to effect, negotiate with or provide any information to any person with respect to, or (iv) from exercising its rights related make any statement, proposal or inquiry, whether written or oral, either alone or in concert with others, to the Preferred Directors in the Certificate board of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines , to engage in a process that could give rise to a Change any director or officer of Control, the Company shall invite and permit or to any stockholder or securityholder of the Investor Company or otherwise make any public announcement or proposal or offer whatsoever with respect to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that any form of business combination or other acquisition transaction involving the stockholders tender their shares to any Person who has publicly announced Company including, without limitation, a merger, consolidation, tender or exchange offer whichoffer, if consummatedsale or purchase of assets or securities, would result in a Change or dissolution or liquidation of Controlthe Company, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement any form of restructuring, recapitalization or commencement or otherwise fails to make a “stop-look-and-listen” communication similar transaction with respect to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlCompany.
Appears in 1 contract
Standstill. 10.1. From and after During the ClosingOption Period, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectlyBuyers:
(a) by no Seller or Seller Affiliate shall commence any tender offer for OTEF BACs (whether or not filed with the SEC), or purchase or otherwiseany BACs from any Person, acquireincluding open market purchases, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stockif such purchase would require the filing of a Schedule 13D with the SEC;
(b) enter into a short ofno Seller or Seller Affiliate will in any manner acquire, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options attempt to acquire Voting Stock, except or make a proposal to the extent necessary for the Investor toacquire, directly or indirectly, engage any securities or interests, whether debt or equity, or properties, assets or obligations of Oxford Entities (other than BACs of OTEF to the extent permitted by subsection (a) above) or commence any tender offer (whether or not filed with the SEC) for securities or interests in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9any Oxford Entity other than OTEF;
(c) effect no Seller or seek, offer or propose (whether publicly or otherwise) to effectSeller Affiliate shall initiate any proposal for, or announce enter into, directly or indirectly, any intention to effect or cause or participate in or in any way knowingly assistacquisition, or knowingly facilitate any other Person to effect or seekfinancing, offer or propose (whether publicly or otherwise) to effect or participate inrefinancing, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stockmerger, (ii) any tender or exchange offer, merger combination or other business combination transaction involving the CompanyOxford Entities including, but not limited to, any of its Subsidiaries Property Owning Entity or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the CompanyOTEF;
(d) initiate, make no Seller or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment toSeller Affiliate shall make, or representation onin any way participate in, directly or indirectly, any solicitation of proxies or consents to vote, or the nomination of seek to advise or influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement person with respect to the voting of any Voting Stock that is inconsistent with the voting obligations securities of the Investor hereunder;any Oxford Entity (other than to vote as an owner of such securities); and
(fe) except as expressly contemplated by this Agreement no Seller or the Certificate of Designations, Sellers' Affiliate shall otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board management or policies of the Company or its Subsidiaries;
(g) formany Oxford Entity, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor limited to any Property Owning Entity or OTEF; and /or advise, assist or encourage any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares Person in accordance connection with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processforegoing.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Standstill. 10.1. From and after Except as otherwise provided in this Agreement or the ClosingCertificate of Designation, so long as the Purchaser Representative has the right to designate or nominate a director to the Board of Directors pursuant to Section 4.1, without the prior written consent of the BoardCompany, the Investor hereby agrees that until such time as the earlier to occur it will not at any time, nor will it cause or permit any of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
: (a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, facilitate or knowingly facilitate encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock equity securities (or beneficial ownership thereof), rights or options to acquire any Voting Stockequity securities (or beneficial ownership thereof), or any securities convertible into or exchangeable for any such equity securities (or beneficial ownership thereof), of the Company, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of Company or its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the CommissionSEC) or written consents with respect to vote any Voting Stock voting securities of the Company;
Company or any of its Affiliates; (db) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, act to seek representation on or to control or influence the management, Board management or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within to obtain representation on the meaning Board of Section 13(d) Directors of the Exchange ActCompany (beyond their right to do so based on their representation on the Board pursuant to Section 4.1); (c) with respect submit any shareholder proposal to the Company, (d) publicly propose any change of control or other material transaction involving the Company or (e) support or encourage any third party in doing any of the foregoing; it being understood that nothing in this Section 4.4 shall (w) restrict or prohibit the Series C Director or Purchaser Nominee, as applicable, from taking any action, or refraining from taking any action, which he or she determines, in his or her reasonable discretion, is necessary or appropriate in light of his or her fiduciary duties as a member of the Board of Directors, (x) restrict or prohibit the making or submission to the Company involving and/or the Board of Directors any of proposal by the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which Purchaser Parties that would or would not reasonably be expected to result in the Company having being obligated to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market publicly disclose such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stockproposal, (y) pursuant to Section 10.2 restrict or (z) during a Permitted Purchase Period (providedprohibit the Purchaser’s acquisition, howeverdisposition, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% sale or more Transfer of the Total Voting Power Purchased Shares (including the accretion of dividends thereon and any dividends payable in any other security) or Conversion Shares issuable upon conversion of the Company)Purchased Shares, (ii) following the conclusion of the period set forth in Section 9each case, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent in accordance with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in Agreement and the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and Designation or (IIz) if the Board determines to engage in a process that could give rise limit or restrict any Transfer pursuant to a Change of Control, the Company shall invite and permit the Investor to participate Permitted Loan or any foreclosure thereunder or Transfer in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company lieu of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlforeclosure thereunder.
Appears in 1 contract
Standstill. 10.1. From and after the Closing, without date of this Agreement until the prior consent third (3rd) anniversary of the BoardClosing Date (the “Standstill Period”), the Investor hereby each Stockholder agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfexcept within the terms of a specific written consent from Parent, (i) propose or disclose an intent to propose, or enter into or agree to enter into, singly or with any other Person or directly or indirectly:
, or encourage others to propose or enter into, any Acquisition Transaction or any other form of restructuring, merger, tender offer, recapitalization or similar transaction with respect to Parent or any of its Subsidiaries, (aii) acquire, or offer, propose or agree to acquire, by purchase or otherwise, acquirerecord or Beneficial Ownership of any securities of Parent or any of its Subsidiaries, agree to acquire or offer to acquire Voting if, as a result thereof, such Stockholder, together with its Affiliates and any members of a Group in which such Stockholder is a member, would, in the aggregate, Beneficially Own shares of Parent Common Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction more than 10% of the total then outstanding shares of Parent Common Stock following Stock; provided, however, that for purposes of this Section 4, the conclusion of the period set forth in Section 9;
Stockholders shall not be deemed a Group based solely upon being parties to this Agreement and performing their obligations hereunder, (ciii) effect or seekmake, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in encourage or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, any solicitation of proxies with respect to any voting securities of Parent or any of its Subsidiaries (iincluding by the execution of action by written consent), encourage or become a participant in any election contest with respect to Parent or any of its Subsidiaries, seek to encourage or influence any Person with respect to any such voting securities or demand a copy of the list of the stockholders or other books and records of Parent or any of its Subsidiaries, (iv) any acquisition participate in or encourage the formation of any Voting Stock partnership, syndicate or rights other group which owns or options seeks or offers to acquire Beneficial Ownership of any Voting Stock, (ii) any tender such voting securities or exchange offer, merger which seeks to affect control of Parent or other business combination involving the Company, any of its Subsidiaries or assets has the purpose of the Company or its Subsidiaries constituting a significant portion circumventing any provision of the consolidated assets of the Company and its Subsidiariesthis Agreement, or (iiiv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with othersothers (including by providing financing for another Person), to seek representation on or to offer to control or influence influence, in any manner, the management, the Board or policies of the Company Parent or any of its Subsidiaries;
(g) form. For the avoidance of doubt, join or the restrictions on the acquisition of additional securities set forth in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned 4.1 shall not (A) apply to participation by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result Stockholder in issuances of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) securities pursuant to the issuance granting or exercise of Shares contemplated by Section 1.1 of this Agreementemployee stock options or other stock incentives pursuant to Parent’s stock incentive plans, (wB) pursuant to restrict the conversion ability of any member of the Shares in accordance with the Certificate Parent Board of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating Directors who is affiliated with any Person regarding Stockholder from performing his or her duties as a transfer director of the capital stock Parent and acting in his or her capacity as a director of the Company Beneficially Owned by the Investor Parent, including without limitation, carrying out his or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and her fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of ControlParent, or (cC) apply to the public announcement exercise of any Acquiror Warrants held by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlStockholder.
Appears in 1 contract
Standstill. 10.1. From and after a. During the ClosingStandstill Period, without except with the prior written consent of of, or waiver by, the Company or otherwise pursuant to approval by the Company Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor Aflac shall not, and shall cause not permit any of its directors, officers, employees, representatives and controlled Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to i. acquire or offer obtain (other than solely as a result of acts taken by the Company, such as share repurchases) any shares of Company Common Stock, which would result in Aflac and its controlled Affiliates collectively Beneficially Owning equal to acquire Voting or in excess of 10% of the outstanding shares of Company Common Stock or direct or indirect rights or options to acquire Voting Stock(the “Ownership Cap”) as reported in the Company’s most recent annual report on Form 10-K filed by the Company with the SEC;
(b) enter into a short ofii. effect, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way knowingly assist, or knowingly facilitate assist any other Person to effect or effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, in (iA) any acquisition of any Voting Stock or rights or options Company Securities (other than in accordance with Section 2.1(a)(i)) outstanding from time to acquire any Voting Stocktime, except as otherwise contemplated by this Agreement; (iiB) any tender or exchange offer, merger or other business combination involving the Company, Company or any of its Subsidiaries Subsidiaries; (C) any recapitalization, restructuring, liquidation, dissolution or assets of other extraordinary transaction with respect to the Company or its Subsidiaries constituting a significant portion any of the consolidated assets of the Company and its Subsidiaries, ; or (iiiD) any “solicitation” of “proxies” (as such terms are used in Regulation 14A promulgated under the proxy rules Exchange Act) of the Commission) or written consents with respect to vote any Voting Stock voting securities of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, iii. except as expressly may be specifically contemplated by this Agreement or the Certificate of DesignationsAgreement, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of as such term is used in Section 13(d13(d)(3) of the Exchange Act) with respect to the Company Securities;
iv. make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving any the Company or its assets or the Company Securities;
v. otherwise act, alone or in concert with others, to seek to control or influence the management of the actions items described under clauses (a) through (f) hereofCompany or the Company Board;
(h) knowingly vi. take any action which would or would reasonably be expected to result in require the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereoftypes of matters set forth in Section 2.1(a)(ii)-(v); or
(i) otherwise take or cause vii. enter into any action inconsistent agreement with any third party with respect to any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding (the provisions of Section 10.1, if at any time restrictions set forth in the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates foregoing clauses (togetheri) through (vii), the “Investor PartiesStandstill Restrictions”) decreases as a result ); provided that none of an Excluded Issuancethe Standstill Restrictions shall prevent, restrict, encumber or limit in any manner Aflac or any of its controlled Affiliates from exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement, the Investor Parties may acquire Purchase Agreement or the Strategic Alliance Agreement, in each case, in accordance with the secondary market such additional number terms and provisions hereof and thereof.
b. Notwithstanding the foregoing, the Standstill Restrictions shall terminate upon the occurrence of shares of Common Stock necessary to maintain the Total Voting Power any of the Company that following events:
i. any Person or “group” (as such term is used in Section 13(d)(3) of the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (Exchange Act) is or becomes the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromBeneficial Owner, directly or indirectly, of voting securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding voting securities;
ii. the Company consummates a merger, consolidation, share exchange or other similar transaction (a “Fundamental Transaction”) with any other Person, other than a Fundamental Transaction in which the voting securities of the Company that are outstanding immediately prior to such Fundamental Transaction continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving or parent entity) at least a majority of the combined voting power immediately after such Fundamental Transaction of (i) acquiring, agreeing the Company’s outstanding securities or (ii) the surviving or parent entity’s outstanding securities;
iii. the security holders of the Company approve a plan of complete liquidation or winding-up of the Company;
iv. the sale or disposition (in one transaction or a series of related transactions) of all or substantially all of the Company’s assets is consummated;
v. a change of a majority of the membership of the Company Board (excluding the cumulative effect of departures and appointments of directors approved by the Company Board and any change approved by a majority of the directors serving on the Company Board prior to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock such change) (each event set forth in the foregoing clauses (i) through (v) pursuant to occurring after the issuance of Shares contemplated by Section 1.1 date of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting Company, shall constitute a “Change of Control”); or
vi. the Company enters into any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreementdefinitive agreement to consummate, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to publicly announces that it plans to, or will engage in a strategic process that could give rise to a Change of Controlto, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; providedenter into, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Standstill. 10.1. From You agree that for a period of eighteen (18) months from and after the Closingdate hereof (the “Standstill Period”), without the prior consent neither you nor any of the Board, the Investor hereby agrees that until such time as the earlier to occur of your Representatives shall (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and you shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, your Representatives not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to), directly or indirectly, engage or directly or indirectly instruct others to (including, without limitation, by directing, assisting, inducing, proposing to, encouraging, requesting or suggesting that any other person do so), unless specifically invited in a collared hedging transaction writing by the Intralinks’ Board of the Common Stock following the conclusion of the period set forth in Section 9;Directors:
(ca) effect or seek, offer or propose (whether publicly or otherwiseotherwise and whether or not subject to conditions) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, facilitate or knowingly facilitate encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwiseotherwise and whether or not subject to conditions) or announce any intention to effect or cause or participate in, : (i) obtaining any acquisition economic interest in, or the acquiring of, any right to direct the voting or disposition of or any other right with respect to, any securities or other obligations of Intralinks or any of its subsidiaries (directly or by means of any Voting Stock Derivative Securities (as defined below)), in each case, whether or rights not any of the foregoing may be acquired or options obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the control of such party) pursuant to acquire any Voting Stockagreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 promulgated under the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise; (ii) any tender or exchange offer, merger offer for securities of Intralinks or other business combination involving the Company, any of its Subsidiaries subsidiaries, or any merger, consolidation, business combination or acquisition or disposition of assets of the Company Intralinks or any of its Subsidiaries constituting a significant portion subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to Intralinks or any of the consolidated assets of the Company and its Subsidiaries, subsidiaries; or (iiiiv) any “solicitation” of “proxies” to vote (as such terms are used in the proxy rules Regulation 14A of the CommissionExchange Act) or written consents to vote (whether or not related to the election or removal of directors) with respect to any Voting Stock voting securities of the Company;
(d) initiate, make Intralinks or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation onits subsidiaries, or the nomination initiation, proposal, encouragement or solicitation of stockholders of Intralinks or any of its subsidiaries for the approval of any candidate tostockholder proposals with respect to Intralinks or any of its subsidiaries, or the Board;
(e) deposit solicitation, advisement or influence of any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement person with respect to the voting of any Voting Stock that is inconsistent with the voting obligations securities of the Investor hereunderIntralinks or any of its subsidiaries;
(fb) except as expressly contemplated by this Agreement deposit any shares of common stock or other voting securities of Intralinks or any of its subsidiaries in a voting trust or subject shares of common stock or other voting securities of Intralinks or any of its subsidiaries to a voting agreement or other agreement or arrangement with respect to the Certificate voting of Designationssuch shares or securities, otherwise actincluding, alone without limitation, lend any securities of Intralinks or any of its subsidiaries to any person for the purpose of allowing such person to vote such securities in concert connection with others, to seek representation on any stockholder vote or to control consent of Intralinks or influence the management, Board or policies any of the Company or its Subsidiariessubsidiaries;
(gc) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d13(d)(3) of the Exchange Act) Act with respect to the Company involving any securities of Intralinks or any of its subsidiaries or otherwise in connection with any of the actions items described under clauses foregoing;
(ad) through (i) call or seek to call any meeting of stockholders of Intralinks or any of its subsidiaries, including by written consent, or provide to any third party a proxy, consent or requisition to call any meeting of stockholders of Intralinks or any of its subsidiaries, (ii) seek to have the stockholders of Intralinks or any of its subsidiaries authorize or take corporate action by written consent without a meeting, solicit any consents from stockholders or grant any consent or proxy for a consent to any third party seeking to have the stockholders authorize or take corporate action by written consent without a meeting, (iii) seek representation on the Board of Directors of Intralinks or any of its subsidiaries, (iv) seek the removal of any member of Board of Directors of Intralinks or any of its subsidiaries, (v) conduct a referendum of stockholders of Intralinks or any of its subsidiaries or (vi) make a request for a stockholder list or other similar records of Intralinks or any of its subsidiaries;
(e) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of Intralinks or any of its subsidiaries;
(f) hereofdisclose any intention, plan or arrangement inconsistent with the foregoing;
(g) knowingly instigate, encourage, join, act in concert with or assist (including, but not limited to, providing or assisting in any way in the obtaining of financing for, or acting as a joint or co-bidder for Intralinks or any of its subsidiaries with) any third party to do any of the foregoing;
(h) knowingly take any action which would or would that could reasonably be expected to result in the Company having require Intralinks or any of its subsidiaries to make a public announcement regarding the possibility of any of the actions events described under clauses (a) through (f) hereofin this paragraph; or
(i) otherwise request that Intralinks or its Board of Directors or any of their respective representatives amend or waive any provision of this paragraph (including this sentence) or for the Board of Directors of Intralinks to specifically invite you or any of your Representatives to take or cause any action inconsistent with any of the foregoing actions prohibited by this paragraph; provided, however, that the restrictions set forth in this Section 9 shall terminate immediately upon (A) the public announcement by Intralinks that it has entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity securities of Intralinks or all or substantially all of the assets (on a consolidated basis) of the Intralinks or (B) any person or group publicly announces or commences a tender or exchange offer to acquire voting securities of Intralinks, that, if successful, would result in such person or group beneficially owning more than 50% of the then outstanding voting securities of Intralinks, and Intralinks files a Schedule 14D-9 with respect to such tender or exchange offer that recommends that Intralinks’ stockholders accept such offer. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Section 10.1.
10.2Agreement. Notwithstanding You represent and warrant to the provisions of Section 10.1Company that, if at any time the percentage as of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (togetherdate of this Agreement, the “Investor Parties”) decreases as a result other than interests in any Index Funds, neither you nor any of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromyour affiliates, directly or indirectly, (i) acquiringown of record or beneficially any Voting Securities or Derivative Securities of the Company, agreeing (ii) possess or have the right to acquire possess any economic interest, any right to direct the voting or offering to acquire Voting Stock disposition of, or direct any other right with respect to, any securities or indirect rights Derivative Securities of the Company, in each case, whether or options to acquire Voting Stock not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (vwhether or not within your control) pursuant to any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the issuance of Shares contemplated by Section 1.1 foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 promulgated under the Exchange Act), or (iii) have entered into any arrangements, agreements or understandings with any other person that, if entered into following the date of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in violate this Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Sources: Non Disclosure Agreement (Synchronoss Technologies Inc)
Standstill. 10.1. From and Until the date that is eighteen (18) months after the Closingdate the Purchaser Representative is no longer entitled to designate any directors pursuant to Section 4.5, the Purchaser agrees that, without the prior consent approval of the BoardBoard of Directors, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall Purchaser will not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly, through its subsidiaries or any other Persons, or in concert with any Person, or as a “group” (as defined in Section 13 of the Exchange Act) with any Person:
(a) by purchase, offer to purchase, or agree to purchase or otherwise, acquire, agree to otherwise acquire or offer to acquire Voting “beneficial ownership” (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of any Class A Common Stock or direct Class B Common Stock, or indirect rights any securities convertible or options exchangeable into Class A Common Stock or Class B Common Stock, excluding any shares of Class A Common Stock, Convertible Preferred Stock or other securities acquired pursuant to acquire Voting Stocka conversion of the Convertible Preferred Stock or otherwise acquired pursuant to the Transaction Documents;
(b) enter into a short make, or in any way participate in, any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, or trade in, derivative any voting securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following Company or any of its Subsidiaries, or seek or propose to influence, advise, change or control the conclusion management, board of directors, policies, affairs or strategy of the period set forth Company by way of any public communication or other communications to securityholders intended for such purpose, except, in Section 9each case, with respect to any Requisite Stockholder Approval;
(c) make a proposal for, or offer of (with or without conditions) any acquisition of or extraordinary transaction involving the Company or any of the Company’s Subsidiaries or any of their respective securities or assets;
(d) effect or seekseek to effect (including, without limitation, by entering into discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way knowingly assist, assist or knowingly facilitate any other Person person to effect or seek, offer or propose (whether publicly public or otherwise) to effect or participate in, (i) any acquisition except as a holder of any Voting Common Stock or rights or options to acquire any Voting Preferred Stock) in a merger, (ii) any tender consolidation, division, acquisition or exchange offerof substantially all assets or equity, merger change of control transaction, recapitalization, restructuring, liquidation or other business combination similar transaction involving the Company, Company or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, ; or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit enter into any Voting Stock discussions, negotiations, arrangements or understandings with or form a group with, any third party in connection with such third party’s taking, planning to take, or seeking to take any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
actions prohibited by clauses (fa) except as expressly contemplated by through (d) of this Agreement Section 4.1 or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of Directors or the management or policies of the Company or Company, including its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if nothing in this Section 4.1 will limit (I) any Carlyle Party’s ability to vote (subject to Section 4.5(c) and the Investor elects other Transaction Documents) or Transfer (subject to Section 4.2) its Common Stock or Preferred Stock or otherwise exercise rights under its Preferred Stock or (II) the ability of any director designated by the Purchaser Representative pursuant to Section 4.5 or elected pursuant to the Series A-1 Certificate to vote or otherwise exercise its fiduciary duties as a member of the Board of Directors, (III) the ability of any observer or director appointed or designated by the Purchaser Representative pursuant to Section 4.5 or pursuant to the Series A-1 Certificate to seek (but solely in such capacity as observer or director) to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating fully as an observer to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date or director on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of ControlDirectors, or (iiIV) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders ability of the Company within such time periodPurchaser Representative or the holders of Convertible Preferred Stock to exercise their rights to appoint directors and observers pursuant to Section 4.5 or the Series A-1 Certificate, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlas applicable.
Appears in 1 contract
Standstill. 10.1. From Each Stockholder other than Travelers and after DLJ severally covenants and agrees that, until the Closing, without the prior consent second anniversary of the BoardClosing Date, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall will not, and shall will cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfsingly or as a part of a "partnership, limited partnership, syndicate or other group" (as those terms are used within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), directly or indirectly, through one or more intermediaries or otherwise:
(a) by purchase without the consent of the Board of Directors of the Buyer, voluntarily acquire or otherwiseoffer, seek, propose or agree to acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting beneficial ownership (as such term is defined in regulations promulgated under the Exchange Act) of an aggregate of more than 5% of the outstanding shares of Buyer Common Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition solicit proxies within the meaning of any Voting Stock or rights or options Regulation 14A promulgated under the Exchange Act with respect to acquire any Voting the Buyer Common Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any become a participant in a solicitation of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents proxies with respect to any Voting Stock of the Company;
Buyer Common Stock, (d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(giii) form, join or in any way participate in a “group” Group (as such term is used within the meaning of Section 13(d13(d)(3) of the Exchange Act, which meaning shall apply for all purposes of this Agreement) which is soliciting or intends to solicit proxies with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Buyer Common Stock, (y) pursuant to Section 10.2 or (ziv) during a Permitted Purchase Period (providedseek to advise, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% encourage or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with influence any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor person or its permitted assigns and transferees, (iii) disclosing the Investor’s intention entity with respect to the voting of any Voting Buyer Common Stock;
(c) form, join or in any way participate in a Group which has acquired or plans to acquire shares of Buyer Common Stock, other than as a Group composed of such Stockholder and its Affiliates (provided that nothing herein shall prohibit a Stockholder from tendering into a tender offer);
(d) deposit any Buyer Common Stock Beneficially Owned in any voting trust or subject any Buyer Common Stock to a voting agreement or other arrangement with similar effect that could reasonably be expected to result in any of the foregoing;
(e) otherwise act, alone or in concert with others (including by it so long as providing financing for another party), to seek or offer to control, in any manner, the management, Board of Directors or policies of Buyer;
(f) unless and until such voting intention is consistent Stockholder has received the prior written invitation or approval of a majority of the disinterested Board of Directors of Buyer, directly or indirectly, solicit, seek or offer to effect, negotiate with the terms of this Agreementor provide any information to any party, or (iv) from exercising its rights related make any statement or proposal to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines any person with a view to engage in forming a process that could give rise Group or make any public announcement or proposal or offer whatsoever, with respect to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that any form of business combination or similar transaction involving the stockholders tender their shares to Buyer or any Person who has publicly announced Subsidiary thereof, including, without limitation, a merger, tender or exchange offer which, if consummated, would result in a Change or liquidation of Control, assets or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement any form of restructuring, recapitalization or commencement or otherwise fails to make a “stop-look-and-listen” communication similar transaction with respect to the stockholders Buyer or any Subsidiary thereof; or
(g) investigate, encourage or assist any third party to do any of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlforegoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sunglass Hut International Inc)
Standstill. 10.1. From and after the Closing, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwiseAs of the Effective Date, acquireother than the Shares issued pursuant to the Transaction Agreement, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;Investor represents that neither Investor nor any Affiliate of Investor Beneficially Owns any Company Securities.
(b) For the period beginning on the Effective Date and ending on the five-year anniversary of the Effective Date (the “Standstill Period”), Investor will not, and it will cause its Affiliates and their respective Authorized Representatives (acting as an agent or on behalf of Investor or its Affiliates) not to, unless invited in writing by the Company Board to, propose or publicly announce or otherwise publicly disclose an intent to propose, or enter into or agree to enter into, singly or with any other Person any transaction that constitutes, or would result in, a Change of Control; provided, however, that the foregoing shall not restrict Investor or any of its Affiliates from (1) making any such proposal, announcement or disclosure, or entering into, agreeing to enter into, any such transaction if invited by the Company in writing (including by e-mail), (2) making any disclosure required by applicable Law in respect of actions otherwise permitted by this Agreement, (3) submitting private proposals to the Company or (4) proposing, announcing, disclosing, entering into or agreeing to enter into a short ofPermitted Transaction.
(c) During the Standstill Period, Investor will not, and will cause its Affiliates and their respective Authorized Representatives (acting as an agent or trade in, derivative securities representing the right to vote on behalf of Investor or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor its Affiliates) not to, directly or indirectly, engage singly or with any other Person, unless invited in a collared hedging transaction writing by the Company Board to take such action:
(i) acquire Beneficial Ownership of any Company Securities; provided, however, that Investor and its Affiliates may acquire Beneficial Ownership of Company Securities to the extent that after giving effect to such acquisition of Company Securities, Investor would not Beneficially Own Common Shares in excess of the Ownership Cap, unless due to accretion in Beneficial Ownership of Common Stock following Shares in connection with the conclusion redemption of the period set forth in Section 9Preferred Shares;
(cii) effect advise, encourage or seek, offer or propose (whether publicly or otherwise) to effectpersuade, or announce seek to advise, encourage or persuade, any intention Person with respect to effect the voting of (or cause execution of a proxy or written consent in respect of), acquisition of, or disposition of any Company Securities;
(iii) request or demand a copy of the Company’s list of shareholders or its other books and records, whether under Section 1701.37 of the Ohio Revised Code or equivalent state or federal Laws;
(iv) participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition encourage the formation of any Voting Stock partnership, syndicate or rights other group that owns or options seeks or offers to acquire Beneficial Ownership of any Voting Stock, (ii) any tender Company Securities or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets that seeks to affect control of the Company or its Subsidiaries constituting a significant portion has the purpose of circumventing any provision of this Agreement;
(v) call, seek to call, or request the call of (publicly or otherwise), alone or in concert with others, any meeting of the consolidated assets of Company’s shareholders, whether or not such a meeting is permitted by the Company and its SubsidiariesCharter or Regulations, including a “town hall meeting”;
(vi) disclose publicly or privately, in a manner that would reasonably be expected to become public, any intent, purpose, plan, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents proposal with respect to any Voting Stock of the Company, the Company Board, the Company’s management, business or corporate structure, policies, affairs, or any of its securities or assets;
(dvii) initiateact, make seek, facilitate, persuade, or encourage, alone or in concert with others, any Person to submit any stockholder proposalnominations or proposals, whether made in furtherance of a “contested solicitation” or otherwise, for the appointment, election or removal of Company Directors or otherwise with respect to the Company or seek, facilitate or encourage the appointment, election or removal of any Company Directors;
(viii) submit, participate in, or be the proponent of, or seek, or persuade or encourage any Person, to submit, any shareholder proposal to the Company (including any submission of shareholder proposals pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the BoardAct);
(eix) deposit any Voting Stock Company Securities in any voting trust or similar arrangement or subject any Voting Stock Company Securities to any arrangement or agreement with respect to the voting of thereof (including by granting any Voting Stock that is inconsistent with proxy, consent, or other authority to vote), other than any such trust, arrangement or agreement among the voting obligations of the Investor hereunderCompany and its Affiliates;
(fx) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with othersothers (including by providing financing for or other assistance to another Person), to seek representation on or to offer to control or influence influence, in any manner, the Company Board or the Company’s management, Board governance, compensation programs, policies, strategies, strategic initiatives, or policies of the Company business or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofcorporate structure; or
(ixi) otherwise take or cause any Person to take any action inconsistent with any of the foregoing provisions of that Investor or Investor’s Affiliates and their respective Authorized Representatives is prohibited from taking pursuant to this Section 10.1.
10.22.1. Notwithstanding anything in this Section 2.1 to the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (togethercontrary, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing restrictions set forth in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but Section 2.1 will not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiringapply, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant solely to the issuance of Shares contemplated extent necessary to facilitate a public or private proposal or transaction by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or any of its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction Affiliates that, if consummated, would result in a Change of Control (a “Permitted Transaction”), upon the earliest to occur of (y) the public announcement by the Company of its entry into a definitive agreement providing for a Change of Control or (z) the public announcement by a third Person of any tender, exchange or other offer or proposal the consummation of which would result in a Change of Control and as to which the Company has publicly recommended for such tender, exchange or other offer or proposal (as long as Investor has not violated this Section 2.1 and such violation has not caused such public announcement) (an, “Extraordinary Transaction”), provided, however, that if any of the transactions referred to in (y) or (z) terminates and the Company has not made a public announcement of its intent to solicit or engage in a transaction (or has announced its decision to discontinue pursuing such a transaction the consummation of which would result in a Change of Control), the restrictions contained in this Section 2.1 will again be applicable, (ii) restrict Investor or any of its Affiliates from engaging in discussions or negotiations regarding the acquisition of, or acquiring, whether by merger, consolidation or otherwise, any Person who Beneficially Owns Company Securities so long as the principal purpose of such acquisition is not to avoid the restrictions set forth in this Section 2.1, (iii) restrict Investor from enforcing or seeking to enforce any of its rights under this Agreement or (iv) restrict Investor or any of its Affiliates from (A) making any public or private statement or announcement regarding an Extraordinary Transaction, (B) making any disclosure required by applicable Law in respect of actions otherwise permitted by this Agreement or (C) submitting private proposals to the Company Board.
Appears in 1 contract
Standstill. 10.1. From Saba and after each Shareholder (each, for purposes of this Section 5, a “Standstill Person”) covenants and agrees with VCIF and Carlyle that, from the Closingdate hereof through the termination of this Agreement pursuant to Section 8, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall will not, and shall will cause its respective principals, directors, general partners, members, officers, employees, representatives agents (in each case, acting on such Standstill Person’s behalf, and Affiliates for the avoidance of doubt, excluding the Saba RICs (as defined below)), affiliated persons (as defined in the Investment Company Act and which, for the avoidance of doubt, shall exclude the Saba RICs but shall include (without limitation) any account or other pooled investment vehicle now or in the future managed, advised or sub-advised by Saba or its affiliated persons), the Representatives under such Standstill Person’s control and any other Persons controlled by (but not or under common control withwith Saba, Saba Capital Management GP, LLC or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (which shall not include the Saba RICs) (all such Persons, collectively, as to such Standstill Person, the Investor and any other Affiliates that have received Company Confidential Information“Standstill Person Entities”), not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage alone or in a collared hedging transaction concert with other Persons (including by directing, requesting or suggesting that any other Person take any of the Common Stock following actions set forth below), unless specifically permitted in writing in advance by the conclusion respective Carlyle Entity, take any of the period actions set forth in Section 9;below with respect to a Carlyle Entity:
(ca) effect effect, seek, offer, engage in, propose (whether publicly or otherwise and whether or not subject to conditions) or cause, participate in or act to, or assist any other Person to effect, seek, engage in, offer or propose (whether publicly or otherwise) to effector cause, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any act to (other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, than as specifically contemplated by this Agreement):
(i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (or become a “participant” in any such “solicitation” as such terms are used defined in Regulation 14A under the proxy rules Exchange Act, including any otherwise exempt solicitation pursuant to clause (iv) of the CommissionRule 14a-1(l)(2) or written consents and including any otherwise exempt solicitation pursuant to Rule 14a-2(b), in each case, with respect to securities of a Carlyle Entity (including, without limitation, any Voting Stock solicitation of the Companyconsents to act by written consent or call a special meeting of shareholders);
(dii) initiateknowingly encourage or advise any other Person or knowingly assist or act to assist any Person in so encouraging or advising any Person with respect to the giving or withholding of any proxy, make consent or submit other authority to vote (other than such encouragement or advice that is with respect to a Carlyle Entity, consistent with the recommendation of such Carlyle Entity’s board or other governing body or such ▇▇▇▇▇▇▇ Entity’s investment adviser or solely amongst the Standstill Person Entities) with respect to a Carlyle Entity;
(iii) engage, directly or indirectly, in any stockholder proposalshort sale that derives all or substantially all of its value from a decline in the market price of VCIF or Carlyle Secured Lending, whether made pursuant Inc. (for the avoidance of doubt, such Standstill Person and its Affiliates may short-sell broad based indices and Carlyle);
(iv) any (i) tender or exchange offer for securities of a Carlyle Entity, or any merger, consolidation, business combination or acquisition or disposition of assets of a Carlyle Entity, or (ii) recapitalization, restructuring, open-ending, liquidation, dissolution or other similar extraordinary transaction with respect to Rule 14a-8 under a Carlyle Entity (it being understood that the foregoing shall not restrict any Standstill Person from tendering securities of a Carlyle Entity, receiving payment for securities of a Carlyle Entity or otherwise participating in any transaction contemplated in this Section 5(a)(iv) in a manner on the same basis as other passive equityholders of the applicable Carlyle Entity or from participating in a manner in any such transaction that has been approved by the applicable Carlyle Entity’s board or other governing body, subject to the terms of this Agreement);
(b) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or and Rule 13d-5(b)(1) thereunder) (other than a group that consists solely of members of the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the BoardStandstill Person Entities and/or Saba RICs) with respect to a Carlyle Entity;
(ec) deposit any Voting Stock securities of a Carlyle Entity in any voting trust or subject any Voting Stock securities of a Carlyle Entity to any arrangement or agreement with respect to the voting of the securities of a Carlyle Entity, as applicable, including, without limitation, lend any Voting Stock that is inconsistent securities of such Carlyle Entity to any Person for the purpose of allowing such Person to vote such securities in connection with any shareholder vote or consent of such Carlyle Entity, as applicable, or to sell such securities, other than any such voting trust, arrangement or agreement solely among the voting obligations members of the Investor hereundersuch Standstill Person and its Affiliates;
(fd) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise actseek, alone or in concert with others, (i) election or appointment to, or representation on, the governing body of a Carlyle Entity, or nominate or propose the nomination of, or recommend the nomination of, any candidate to seek representation on the board or other governing body of a Carlyle Entity, (ii) the removal or resignation of any member of the board or other governing body of a Carlyle Entity, (iii) the removal or replacement of ▇▇▇▇▇▇▇ or any of its Affiliates as the investment adviser to control VCIF or influence any other Person as the managementinvestment adviser to a Carlyle Entity, (iv) the alteration, modification, or termination of the Investment Advisory Agreement or an investment advisory (or similar) agreement of a Carlyle Entity, or (v) to knowingly encourage any such actions in clauses (i) through (iv);
(e) make any proposal for consideration by shareholders at any annual or special meeting of shareholders of a Carlyle Entity (pursuant to Rule 14a-8 under the Exchange Act or otherwise), or take any action (other than in accordance with this Section 5) with respect to any shareholder proposal or written consent in a manner that is not supported by the VCIF Board or policies the board or other governing body of the Company a Carlyle Entity, as applicable;
(f) make a request for a shareholder list or its Subsidiariesother books and records of a Carlyle Entity under Delaware law or any other statutory or regulatory provision;
(g) formseek to control or publicly influence a Carlyle Entity or the board or other governing body, join the Carlyle Entity’s investment adviser or in any way participate in a “group” (within the meaning of Section 13(d) policies of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereofCarlyle Entity;
(h) institute, solicit, knowingly assist or join any litigation, arbitration or other proceeding against or involving any Carlyle Entity or any of the current or former directors, trustees or officers (including derivative actions) of any Carlyle Entity; provided, however, that, for the avoidance of doubt, the foregoing shall not prevent a Standstill Person from (A) bringing litigation to enforce the provisions of this Agreement or the Transaction Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, a Carlyle Entity against a Standstill Person, (C) being included as a passive member within a class of stockholders in a class-action lawsuit, and receiving compensation as a passive member of such class, or (D) responding to or complying with a validly issued legal process;
(i) make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the board or other governing body of a Carlyle Entity, (ii) any change in the capitalization, share purchase program, dividend policy or distribution policy of a Carlyle Entity, (iii) any other material change in the management, business or corporate structure of a Carlyle Entity, or (iv) any waiver, amendment or modification to the Organizational Documents or the organizational documents of a Carlyle Entity;
(j) enter into any negotiations, arrangements or understandings with any Person with respect to any of the foregoing, or advise, knowingly assist or knowingly encourage others to take any action which would with respect to any of the foregoing; or
(k) publicly request (x) a Carlyle Entity or would reasonably be expected the boards or other governing bodies of a Carlyle Entity or any of their respective Representatives amend or waive any provision of this Section 5 (including this sentence) or (y) the governing bodies of any of the Carlyle Entities to result in specifically invite the Company having Standstill Person Entities to make a public announcement regarding take any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of prohibited by this Section 10.1.
10.25. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing Nothing in this Agreement Section 5 shall be deemed to prohibit or restrict the Investor or its Standstill Person Entities from communicating privately with the directors, officers, employees, representatives and Affiliates controlled by advisors of a Carlyle Entity (but not under common control withincluding ▇▇▇▇▇▇▇) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with private communications would not be reasonably expected to trigger public disclosure obligations for ▇▇▇▇, any Shareholder, ▇▇▇▇▇▇▇ or any Carlyle Entity. For the avoidance of doubt, clients of Saba that are investment companies registered under the Investment Company Act of 1940, as amended (the “Saba RICs”) are not parties to, are not restricted by and are not governed by, the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Sources: Settlement and Voting and Support Agreement (Carlyle Group Inc.)
Standstill. 10.1. From Beaumont agrees that, during the period beginning on the date hereof and after ending on the Closing, without the prior consent fifth (5th) anniversary of the Boarddate hereof (the "Restricted Period"), the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall he will not, and shall he will cause its directorseach of his Affiliates, officersincluding, employeeswithout limitation, representatives and Affiliates controlled by (but not under common control with) the Investor and any agents or other Affiliates that have received Company Confidential Information, persons acting on his behalf not to, on its behalf, directly or indirectlyand will cause his respective Associates (as defined in Rule 12b-2) not to:
(a) acquire, offer or propose to acquire or agree to acquire, directly or indirectly, by purchase or otherwise, acquire, agree beneficial ownership of any (i) interests in any of the Company's indebtedness or (ii) capital stock of the Company including but not limited to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stockshares of common stock of the Company;
(b) enter into submit, induce or encourage any person to submit, any shareholder proposal (pursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration at a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction meeting of the Common Stock following the conclusion shareholders of the period set forth in Section 9Company;
(c) advise, encourage or influence any person with respect to voting any shares of capital stock of the Company with respect to any matter;
(d) seek to control or influence the governance or policies of the Company;
(e) effect or seekseek to effect (including, without limitation, by entering into any discussions, negotiations, agreements or understandings with any third person), offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way knowingly assist, assist or knowingly facilitate any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, in (i) any acquisition of any Voting Stock material assets or rights businesses of the Company or options to acquire any Voting Stockof its subsidiaries, (ii) any tender offer or exchange offer, merger merger, acquisition or other business combination involving the Company, Company or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, subsidiaries or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) recapitalization, restructuring, liquidation, dissolution or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement other extraordinary transaction with respect to the voting Company or any of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunderits subsidiaries;
(f) except as expressly contemplated by make any request, submit any proposal or disclose any intent to seek or obtain any waiver, consent under, or any amendment of, any provision of the Exchange Agreement or this Agreement or the Certificate of Designations, otherwise act, alone or in concert other than through non-public communications with others, to seek representation on or to control or influence the management, Board or policies of the Company that would not be reasonably determined to trigger public disclosure obligations for any Party or its Subsidiariesany Affiliate of any Party;
(g) formenter into any arrangements, join understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other person for the purpose of engaging, or offering or proposing to engage, in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;foregoing; or
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause or induce others to take any action inconsistent with any of the foregoing provisions of this Section 10.1foregoing.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Standstill. 10.1. From and after the Closing, without date hereof until the prior consent earlier of the BoardClosing or the termination of this Agreement in accordance with its terms, the Investor hereby agrees that until such time as Sellers and the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor Owners shall not, and nor shall cause its directorsthey permit any of their Affiliates to, nor shall they authorize or permit any of their, officers, directors, employees, representatives and Affiliates controlled by or agents (but not under common control with) collectively, the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to“Seller Representatives”), directly or indirectly, engage in a collared hedging transaction of to (a) solicit, facilitate, initiate, entertain, encourage or take any action to solicit, facilitate, initiate, entertain or encourage, any inquiries or communications or the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition making of any Voting Stock proposal or rights offer that constitutes or options to acquire any Voting Stock, may constitute an Acquisition Proposal (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiariesas defined herein), or (iiib) participate or engage in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) discussions or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tonegotiations with, or representation on, provide any information to or the nomination of take any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent other action with the voting obligations of intent to facilitate the Investor hereunder;
(f) except as expressly contemplated by this Agreement efforts of, any Person concerning any possible Acquisition Proposal or the Certificate of Designations, otherwise act, alone any inquiry or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action communication which would or would might reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4Acquisition Proposal. For purposes of this Section 10, a “Pending COC Event” meansAgreement, the earlier term “Acquisition Proposal” shall mean any inquiry, proposal or offer from any Person (other than Purchaser or any of (aits Affiliates) the date on which the Board (i) publicly recommends that the stockholders tender their shares relating to any Person who has publicly announced a tender merger, consolidation, recapitalization, liquidation or exchange offer whichother direct or indirect business combination or reorganization involving any Seller, if consummatedthe sale, would result transfer, lease, exchange, license or other disposition of any of the Purchased Assets, other than sales of Inventory in a Change the Ordinary Course of ControlBusiness, or (ii) fails any other transaction, the consummation of which could reasonably be expected to recommend that stockholders reject such an offer within 10 business days after its public announcement impede, interfere with, prevent or commencement or otherwise fails to make a “stop-look-and-listen” communication to materially delay the stockholders consummation of the Company within such time periodtransactions contemplated by this Agreement or which would reasonably be expected to diminish significantly the benefits to Purchaser or Parent of the transactions contemplated hereby. The Sellers and the Owners shall immediately cease and cause to be terminated, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Controland shall cause all Seller Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to, or (c) that could reasonably be expected to lead to, an Acquisition Proposal. The Sellers shall promptly notify each Seller Representative of its obligations under this Section 6.6. Without limiting the public announcement foregoing, it is agreed that any violation of the restrictions set forth above by the Company that it recommends any transaction thatSeller Representative or any Affiliate of any Seller or any Owner, if consummatedwhether or not such Person is purporting to act on behalf of any Seller or any Owner, would result in shall be deemed to be a Change breach of Controlthis Section 6.6 by each Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Interleukin Genetics Inc)
Standstill. 10.1. (a) From and after the Closing, without the prior consent of the Board, the Investor hereby agrees that Effective Date until such time as both (i) the earlier to occur of Investor Ownership Threshold is no longer satisfied and (xii) it ceases to Beneficially Own 5% there is no longer an Investor Director serving as a member of the Total Voting Power, and Board (y) a Pending COC Eventthe “Standstill Period”), the Investor shall not, and shall cause its directors, officers, employees, representatives subsidiaries and Affiliates controlled by (but not under common control with) the Investor Representatives acting on its and any other Affiliates that have received Company Confidential Information, its respective subsidiaries’ behalf not to, on directly or indirectly (including through any arrangements with a third party):
(i) except for Equity Securities of the Company received by way of stock splits, stock dividends, reclassifications, recapitalizations or other distributions by the Company in respect of its behalfCommon Stock, and Equity Securities purchased pursuant to Section 4 or acquired as a result of any conversion of Preferred Stock or the exercise of any rights under the Framework Agreement, (x) acquire, agree to acquire, propose or offer to acquire (including through the acquisition of Beneficial Ownership) (directly or indirectly:
(a) , by purchase or otherwise) any Equity Securities of the Company; provided that this clause (i) shall not prohibit acquisitions of Common Stock, acquireif after giving effect to such transaction, agree the Investor Ownership Threshold is equal to or less than 10%, or (y) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire (directly or offer to acquire Voting Stock indirectly, by purchase or direct or indirect rights or options to acquire Voting Stock;
(botherwise) enter into a short ofany Equity Securities of the Company;(ii) make, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toin any way participate, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies,” “consents” or “authorizations” to vote (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment toSEC), or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of any shares of Voting Stock that is inconsistent (other than in each case (x) the Investor and its Affiliates, (y) in accordance with and consistent with the voting obligations recommendation of the Investor hereunderBoard or (z) with respect to the election of a Nominee);
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(giii) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d13(d)(3) of the Exchange Act, for the purpose of voting, acquiring, holding, or disposing of, any Voting Stock;
(iv) submit to the Board a proposal for or offer of, with or without conditions, any acquisition of, or merger, recapitalization, reorganization, business combination or other extraordinary transaction involving, the Company or any subsidiary thereof or any of its or their respective securities or assets, or make any public announcement with respect to such proposal or offer, in each case, except a nonpublic proposal or offer to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which that would or would not reasonably be expected to result in require the Company having to make a public announcement regarding with respect thereto;
(v) request the Company or any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, subsidiaries directly or indirectly, (i) acquiring, agreeing to acquire amend or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 waive any provision of this Agreement, (w) pursuant in each case, except a nonpublic request to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant Company that would not reasonably be expected to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of require the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication public announcement with respect thereto;
(vi) contest the validity or enforceability of any provision contained in this Section 6;
(vii) call, or seek to call, a meeting of the stockholders of the Company within such time periodor initiate any stockholder proposal, (b) the execution or initiate or propose any action by written consent, in each case for action by the stockholders of the Company (other than, in each case, with respect to the election of a definitive agreement which if consummated will result Nominee in a Change accordance with the terms hereof);(viii) nominate candidates for election to the Board or otherwise seek representation on the Board (except as expressly set forth in this Agreement) or seek the removal of Control, or any member of the Board (c) except for the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.Investor Director); or
Appears in 1 contract
Standstill. 10.1. From The Stockholders hereby agree that, from and after the Closing, without the prior consent of the Boarddate hereof, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, Stockholders and (y) a Pending COC Event, the Investor their Affiliates shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly, unless specifically requested by Parent or expressly contemplated by the Merger Agreement:
(a) unless otherwise agreed to by Parent's Board of Directors, acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise (including through a merger proposal, acquiretender offer or exchange offer), agree to acquire or offer to acquire Voting Stock any shares of Parent Stock, any securities or direct or indirect rights to acquire Parent Stock or any other securities of Parent, or any assets of Parent or any subsidiary or division thereof, other than any acquisition of options to acquire Voting StockParent Stock by Robert B. McKeon as compensation for his services as a director of P▇▇▇▇▇;
(b) enter into a short ofmake, or trade in any way participate in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction any "solicitation" of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “"proxies” " (as such terms are used in the proxy rules of the CommissionSEC) to vote (including by consent), or written consents seek to advise or influence any person or entity with respect to the voting of, any Voting Stock voting securities of Parent (including, without limitation, by making publicly known your position on any matter presented to stockholders), other than to recommend that stockholders of the CompanyCompany vote in favor of the Merger and the Merger Agreement;
(c) submit to Parent any stockholder proposal under Rule 14a-8 under the Exchange Act;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment public announcement with respect to, or representation onsubmit a proposal for, or the nomination offer of (with or without conditions) any candidate to, the Boardextraordinary transaction (including a merger or form of reorganization) involving Parent or its securities or assets;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “"group” " (within the meaning of as defined in Section 13(d13(d)(3) of under the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent connection with any of the foregoing provisions of this Section 10.1.foregoing;
10.2. Notwithstanding the provisions of Section 10.1, if at (f) seek in any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromway, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to have any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes provision of this Section 102.1 amended, a “Pending COC Event” meansmodified or waived; or
(g) otherwise take, directly or indirectly, any actions with the earlier purpose or effect of (a) avoiding or circumventing any provision of this Section 2.1 or which could reasonably be expected to have the date on which the Board (i) publicly recommends that the stockholders tender their shares effect of preventing, impeding, interfering with or adversely affecting its ability to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after perform its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlobligations under this Agreement.
Appears in 1 contract
Standstill. 10.1. From For the period (the “Standstill Period”) commencing on the date hereof and after ending on the Closingearlier of: (i) the date which is six months from the date of this Agreement; and (ii) the date a person not affiliated with Purchaser or its associates (as such term is defined in Rule 12b-2 promulgated under the Exchange Act) acquires, without announces an intention to acquire or proposes to acquire in an transaction described in clauses (a) through (j) below not approved by the prior consent Board of Directors of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall Company; Purchaser will not, and shall will cause its directors, officers, employees, representatives associates (as such term is defined under the Exchange Act) and Affiliates controlled by its affiliates whom it controls (but not as such term is defined under common control withthe Exchange Act) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfunless expressly requested in writing, in advance, by the Company or pursuant to a written agreement with the Company, directly or indirectly, in any manner whatsoever:
(a) acquire, announce an intention to acquire, offer or propose to acquire, solicit an offer to sell or donate or agree to acquire, or enter into any arrangement or undertaking to acquire, directly or indirectly, by purchase purchase, gift or otherwise, acquire, agree to acquire or offer to acquire Voting Stock record or direct or indirect rights beneficial ownership interest in any securities or any assets of the Company or any direct or indirect rights, warrants or options to acquire Voting Stockrecord or direct or indirect beneficial ownership of any securities or assets of the Company (an “Acquisition”), if such Acquisition would cause Purchaser to beneficially own 15% or more of the voting equity securities of the Company;
(b) enter into a short ofmake, propose to make, or trade inparticipate in any merger, derivative securities representing consolidation, business combination, recapitalization, restructuring, liquidation, dissolution, or other similar transaction involving the right Company;
(c) solicit, make, effect, initiate, cause or, in any way participate in (other than by granting a proxy to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor tomanagement representatives), directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used defined in the proxy rules of the CommissionSecurities and Exchange Commission promulgated pursuant to Section 14 of the Exchange Act) or written consents with respect to from any Voting Stock holders of any securities of the Company;
(d) initiate, make call or submit seek to have called any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations meeting of the Investor hereunder;
(f) except as expressly contemplated by this Agreement stockholders of the Company or the Certificate of Designations, otherwise any subsidiary thereof or seek or act, alone or in concert with others, to seek representation on or to control advise or influence in any manner whatsoever, any person or entity with respect to the management, Board or policies of the Company or its SubsidiariesCompany;
(ge) form, join or in participate in, or otherwise encourage the formation of, any way participate in a “group” (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect to the Company involving record or beneficial ownership of any securities of the actions items described under clauses (a) through Company;
(f) hereofarrange, facilitate, or in any way participate, directly or indirectly, in any financing for the purchase by any person in a transaction not approved by the Board of Directors of the Company of any securities or assets of the Company or any of its subsidiaries;
(g) (1) act, directly, or indirectly, to seek to control, advise, direct or influence the management, Board of Directors (including any individual members thereof), stockholders, policies or affairs of the Company or any subsidiary thereof; provided, however, that nothing contained herein shall prevent Purchaser from freely communicating privately with management and the directors Purchaser’s observations, recommendations and preferences with respect to the Company, its operations and policies; or (2) disclose an intent, purpose, plan or proposal with respect to the Company or any subsidiary thereof inconsistent with the provisions of this letter agreement, including, without limitation, any intent, purpose or plan that requires the Company to waive the benefit of or amend any provision of this letter agreement;
(h) knowingly take any action which would or would reasonably be expected to result in might require the Company having to make a public announcement regarding any matter of the actions described under types set forth in clauses (a) through (fg) hereof; orof this Section 6.1;
(i) otherwise take agree or cause offer to take, or encourage (other than by granting a proxy to management representatives) or propose (publicly or privately) the taking of, or announce an intention to take, any action inconsistent with referred to in clauses (a) through (g), inclusive, of this Section 6.1;
(j) assist, induce or encourage (other than by granting a proxy to management representatives), or enter into discussions, negotiations, arrangements or understandings with, any person to take any action of the type referred to in clauses (a) through (i), inclusive, of this
Section 6.1. The expiration of the Standstill Period shall not terminate or otherwise affect any of the foregoing other provisions of this Section 10.1letter agreement.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Sources: Purchase Agreement (Zucker Anita G)
Standstill. 10.1. From and after the Closing, without the prior consent As of the Boarddate hereof, the Investor you hereby agrees represent and warrant to tbe Company that until such time as the earlier to occur neither you nor any of (x) it ceases to Beneficially Own 5% your Representatives acting on your behalf or affiliates, or any person with whom any of the Total Voting Powerforegoing may be deemed to be acting in concert with respect to the Company or its securities, and (y) owns any securities of the Company. You agree that, for a Pending COC Eventperiod of one year from the date of this letter agreement, unless specifically invited in writing by the Investor shall notBoard of Directors of the Company, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and neither you nor any of your affiliates or subsidiaries or Representatives acting on your behalf or on behalf of other Affiliates that have received Company Confidential Information, not to, on its behalfpersons acting in concert with you will in any manner, directly or indirectly:
: (a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, facilitate or knowingly facilitate encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock securities (or beneficial ownership thereof), or rights or options to acquire any Voting Stocksecurities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination offer involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or written consents with respect to vote any Voting Stock voting securities of the Company;
Company or any of its affiliates; (db) initiateform, make join or submit in any stockholder proposal, whether made pursuant to Rule 14a-8 way participate in a “group” (as defined under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e1934 Act) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting Company or otherwise act in concert with any person in respect of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
such securities; (fc) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of Directors or policies of the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within to obtain representation on the meaning Board of Section 13(d) Directors of the Exchange ActCompany; (d) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in force the Company having to make a public announcement regarding any of the actions described under clauses types of matters set forth in (a) through above; or (fe) hereof; or
(i) otherwise take enter into any discussions or cause arrangements with any action inconsistent third party with respect to any of the foregoing provisions foregoing. You also agree during such period not to request (in any manner that would reasonably be likely to cause the Company to disclose publicly) that the Company or any of its Representatives, directly or indirectly, amend or waive any provision of this Section 10.1.
10.2paragraph (including this sentence). Notwithstanding the provisions of Section 10.1You further agree that, if at any time the percentage during such period, you or any of the Total Voting Power Beneficially Owned your affiliates or subsidiaries or Representatives acting on your behalf are approached by the Investor and its Affiliates any third party (together, the “Investor Parties”) decreases other than as a result source of an Excluded Issuancefinancing to you for a Possible Transaction) concerning your or their participation in a transaction involving any assets, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit indebtedness or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreementbusiness of, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Controlsecurities issued by, the Company shall invite and permit the Investor to or any of its subsidiaries, you will not participate in any discussions or enter into any agreements with such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of third party regarding the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlPossible Transaction.
Appears in 1 contract
Sources: Mutual Confidentiality Agreement (Evoke Pharma Inc)
Standstill. 10.1. From and after the Closing, without the prior consent of the Board, the Investor Each Seller hereby agrees that until for so long as they hold any shares of Parent Common Stock, neither he or it nor any of their affiliates (as such time as term is defined under the earlier to occur of (xExchange Act) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and will in any other Affiliates that have received Company Confidential Information, not to, on its behalfmanner, directly or indirectly:
(a) by purchase or otherwiseeffect, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way knowingly assist, or knowingly facilitate assist any other Person to effect or effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the CommissionSEC) or written consents with respect to vote any Voting Stock voting securities of the CompanyParent other than proxies and votes as solicited by Parent;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gi) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of as defined under the Exchange Act) with respect to the Company involving any securities of the actions items described under clauses (a) through (f) hereofParent;
(hii) knowingly take make any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any of the actions described under clauses (a) through (f) hereofextraordinary transaction involving Parent or its securities or assets; or
(iiii) otherwise take act, alone or cause in concert with others, to seek to control or influence the management, Board of Directors or policies of Parent except as may be otherwise specifically contemplated by this Agreement; or
(b) vote or provide consent with respect to any action inconsistent and all of the Shares beneficially owned by Seller, by proxy, instruction or otherwise (in each case to the extent such Shares are eligible to so vote), in connection with any election or removal of the foregoing provisions directors for a slate of this Section 10.1.
10.2directors which names more than two (2) directors nominated by or affiliated with either Sellers, any current or previous affiliate of any Seller or any current or previous affiliate of Target. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates Each Seller also agree during such period not to request Parent (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromemployees or agents), directly or indirectly, (i) acquiring, agreeing to acquire amend or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to waive any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes provision of this Section 10, a “Pending COC Event” means, the earlier of 7.10 (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlincluding this sentence).
Appears in 1 contract
Sources: Share Purchase Agreement (Sciclone Pharmaceuticals Inc)
Standstill. 10.1. From LOL agrees that, for a period of twelve (12) months beginning on the date hereof (the “Standstill Period”), unless specifically invited in writing by Ceres and after the Closingexcept in connection with any bankruptcy proceedings relating to Ceres, without the prior consent neither LOL nor any of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and LOL’s Affiliates controlled by (but not under common control with) the Investor and or Representatives will in any other Affiliates that have received Company Confidential Information, not to, on its behalfmanner, directly or indirectly:
: (a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, facilitate or knowingly facilitate encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock securities (or beneficial ownership thereof), or rights or options to acquire any Voting Stocksecurities (or beneficial ownership thereof), or any assets, indebtedness or businesses of Ceres, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its SubsidiariesCeres, or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Ceres; (b) otherwise act, alone or in concert with others, to seek or propose to influence or control the Board of Directors or the management or policies of Ceres, or to make or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote any voting securities of Ceres or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tosubsidiary thereof, or representation on, to seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust person or subject any Voting Stock to any arrangement or agreement entity with respect to the voting of any Voting Stock that is inconsistent voting securities of Ceres or any subsidiary thereof; or (c) enter into any discussions, negotiations, arrangements, agreements or understandings (whether written or oral) with, or advise, assist or encourage any third party with the voting obligations respect to any of the Investor hereunder;
(f) except as expressly contemplated by this Agreement foregoing, or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(g) form, join or in any way engage in discussions relating to the formation of, or participate in in, a “group” (within the meaning of Section 13(d13(d)(3) of the Securities Exchange Act) Act of 1934, as amended), in connection with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such processforegoing; provided, however, that if that, a confidential submission of a proposal with respect to a Possible Transaction made by LOL to the Investor elects Board of Directors of Ceres with respect to participate any transaction described in such processclause (a) of this sentence shall not be deemed to be a breach of this Section 16. In addition, the Preferred Directors provisions of this Section 16 shall recuse themselves from terminate upon the earliest to occur of: (1) public announcement of Ceres’ entry into a definitive agreement with respect to any further Board transaction described in clause (a) of the preceding sentence with a third party or other event involving a change in control of Ceres, (2) public announcement of Ceres’ entry into a definitive agreement with respect to a sale of all or substantially all of its assets to a third party, (3) Ceres’ recommending to its stockholders a merger or business combination, change in control transaction or sale of all or substantially all assets with or to a third party, and (4) Ceres recommending that its stockholders accept a tender offer made by a third party for any of Ceres’ outstanding equity securities. During the Standstill Period, if Ceres enters into discussions relating to such process.
10.4. For purposes a Possible Transaction with a third party involving a merger or business combination or other event involving a change of this Section 10, control or a “Pending COC Event” means, sale of all or substantially all of the earlier assets or securities of (a) the date on which the Board Ceres: (i) publicly recommends Ceres shall use commercially reasonable efforts to enter into an agreement with any such third party containing standstill provisions that are not materially less favorable to Ceres than those set forth in this Section 16; and (ii) if Ceres enters into or modifies the stockholders tender their shares standstill provisions of an agreement with any such third party and such standstill provisions are materially less favorable to Ceres than those set forth in this Section 16, including if Ceres does not enter into any Person who has publicly announced a tender or exchange offer such standstill provisions, then, Ceres shall promptly execute and deliver to LOL an amendment to this Agreement which, if consummatedduly executed and delivered by LOL, would result in a Change of Control, or (ii) fails provide LOL with standstill provisions that are materially comparable to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication those provided to the stockholders third party in the standstill provisions of the Company within agreement or amendment executed with such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlthird party.
Appears in 1 contract
Standstill. 10.1. From and after Each Party agrees that, for a period of twelve (12) months from the Closingdate hereof, without the prior written consent of the Boardother Party, the Investor hereby agrees that until which shall be approved by such time as the earlier to occur other Party’s Board of (x) it ceases to Beneficially Own 5% Directors, neither Party nor any of the Total Voting Powerits controlled affiliates or Representatives, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, acting on its behalf, will in any manner, directly or indirectly:
, effect, publicly or privately propose to effect, or cause or in any way assist or encourage any other person to effect or publicly or privately propose to: (ai) acquire, offer to acquire, or agree to acquire, directly or indirectly, beneficially or otherwise, by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock any voting securities or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stockvoting securities of the other Party or any subsidiary thereof, or any assets of the other Party or any subsidiary or division thereof; (ii) make any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company other Party or its Subsidiaries constituting a significant portion of subsidiaries; (iii) make any recapitalization, restructuring, liquidation, dissolution or other extraordinary transactions with respect to the consolidated assets of the Company and other Party or its Subsidiariessubsidiaries; (iv) make, or in any way participate in, directly or indirectly (iiiincluding by providing financing to another party) any “solicitation” of “proxies” (as such terms are used defined in the proxy rules Rule 14a-1 of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Securities Exchange Act or otherwiseof 1934, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment toamended) to vote, or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust person or subject any Voting Stock to any arrangement or agreement entity with respect to the voting of of, any Voting Stock that is inconsistent with the voting obligations securities of the Investor hereunder;
other Party; (fv) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board board of directors, or policies of the Company other Party; (vi) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any of the foregoing or any other extraordinary transaction involving the other Party or its Subsidiaries;
securities or assets; (gvii) form, join or in any way participate in a “group” (within the meaning of as defined in Section 13(d13(d)(3) of the Securities Exchange ActAct of 1934, as amended) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent connection with any of the foregoing provisions foregoing; or (viii) request the other Party or any of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromRepresentatives, directly or indirectly, (i) acquiring, agreeing to acquire amend or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 waive any provision of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such processparagraph; provided, however, that if the Investor elects nothing in this paragraph shall a Party from presenting a proposal on a confidential basis to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders Directors of the Company within such time periodother Party, (b) including with respect to a merger, asset purchase or other business combination with the other Party. Notwithstanding the foregoing, this paragraph shall no longer be binding upon a Party upon the execution by the Company of a definitive agreement between he other Party and any third party with respect to a merger, asset sale, consolidation or other business combination, in which if consummated will result in a Change the former stockholders of Controlthe transacting Party immediately prior to the closing of the transaction would own less than 50% of the voting securities or assets of the surviving, resulting or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlparent entity.
Appears in 1 contract
Sources: Mutual Non Disclosure and Standstill Agreement (Aloha Acquisition Sub, Inc.)
Standstill. 10.1. From None of the Investors may (and after the Closingeach Investor shall cause its Affiliates and Associates that it controls, and use reasonable efforts to cause its other Affiliates and Associates, not to), without the prior written consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase publicly propose that any Investor or otherwise, acquire, agree to acquire Qualified Stockholder or offer to acquire Voting Stock any Affiliate or direct Associate of any Investor or indirect rights or options to acquire Voting Stock;
(b) Qualified Stockholder enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor tointo, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the CompanyParent or propose to purchase, any of its Subsidiaries directly or assets of the Company or its Subsidiaries constituting indirectly, a significant material portion of the consolidated assets of the Company and its SubsidiariesParent or any Material Parent Subsidiary, or make any such proposal privately if it would reasonably be expected to require Parent to make a public announcement regarding such proposal;
(iiib) make, or in any “way participate in, directly or indirectly, any "solicitation” " of “"proxies” " (as such terms are used in Regulation 14A promulgated under the proxy rules of the CommissionExchange Act) to vote or written consents consent with respect to any Voting Stock Securities of Parent or become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to Parent;
(c) form, join or participate in or encourage the formation of a "group" (within the meaning of Section 13(d)(3) of the CompanyExchange Act) with respect to any Voting Securities of Parent, other than a group consisting solely of Investors and Qualified Stockholders;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any Securities of Parent into a voting trust or subject any such Voting Stock Securities to any arrangement or agreement with respect to the voting thereof, other than any such trust, arrangement or agreement (i) the only parties to, or beneficiaries of, which are Investors and Qualified Stockholders and (ii) the terms of which do not require or expressly permit any Voting Stock that is party thereto to act in a manner inconsistent with this Agreement;
(e) initiate, propose or otherwise solicit stockholders of Parent for the voting obligations approval of one or more stockholder proposals with respect to Parent as described in Rule 14a-8 under the Investor hereunderExchange Act, or induce or attempt to induce any other person to initiate any stockholder proposal with respect to Parent;
(f) except as expressly contemplated by this Agreement in accordance with Section 3.04, seek election to or seek to place a representative on the Board or seek the removal of any member of the Board;
(g) call or seek to have called any meeting of the stockholders of Parent;
(A) solicit, seek to effect, negotiate with or provide non-public information to any other person with respect to, (B) make any statement or proposal, whether written or oral, to the Board or any director or officer of Parent with respect to, or (C) 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 Parent or the Certificate acquisition of Designationsa substantial portion of the equity securities or assets of Parent or any Material Parent Subsidiary, including a merger, consolidation, tender offer, exchange offer or liquidation of Parent's assets, or any restructuring, recapitalization or similar transaction with respect to Parent or any Material Parent Subsidiary; provided, however, that the foregoing shall not (x) apply to any discussion between or among the Investors and the Qualified Stockholders or any of their respective officers, employees, agents or representatives or (y) in the case of clause (B) above, be interpreted to limit the ability of any Investor or Qualified Stockholder, or any designee of any Investor or Qualified Stockholder, on the Board to make any such statement or proposal or to discuss any such proposal with any officer or director of or advisor to Parent or advisor to the Board unless, in either case, it would reasonably be expected to require Parent to make a public announcement regarding such discussion, statement or proposal;
(i) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board management or policies of Parent (except for (A) voting as a holder of Voting Securities in accordance with the Company terms of such Voting Securities and (B) actions taken as a director or its Subsidiariesofficer of Parent);
(gj) formpublicly disclose any intention, join plan or in arrangement inconsistent with the foregoing, or make any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or such disclosure privately if it would reasonably be expected to result in the Company having require Parent to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofsuch intention, plan or arrangement; or
(ik) otherwise take advise, assist (including by knowingly providing or cause arranging financing for that purpose) or knowingly encourage any action inconsistent other person in connection with any of the foregoing provisions of this Section 10.1foregoing.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Sources: Merger Agreement (Time Warner Inc)
Standstill. 10.1. From (a) Astellas agrees that from the Effective Date until the date that is the earlier of (i) [*] after [*] of the [*] in the [*] and (ii) [*] after the Closing[*] of [*] in its entirety] (the “Standstill Period”), without the prior consent neither Astellas nor any of the Boardits Affiliates shall, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and in any other Affiliates that have received Company Confidential Information, not to, on its behalfmanner, directly or indirectly:
indirectly unless invited to do so by Medivation: (aA) by purchase or otherwisemake, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or initiate, cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of beneficial ownership of any Voting Stock voting securities of Medivation or any voting securities of any subsidiary or other Affiliate of Medivation, if the effect of such acquisition would be to entitle Astellas to cast directly or indirectly more than [*] of the voting power in any election of directors of Medivation (for purposes of the [*] calculation under this Section 16.7(a) (A), all such securities, rights or options to acquire beneficially owned by Astellas (including through Affiliates or others) shall be treated on an as-exercised and as-converted basis, but such securities, rights or options beneficially owned by others shall not be so treated); (B) make, effect, initiate, cause or participate in any Voting Stock, (ii) any tender acquisition of all or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion substantially all of the consolidated assets of the Company and its Subsidiaries, Medivation; (C) engage or (iii) become a participant in any “solicitation” of (x) “proxies” (as such terms are used defined in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 Regulation 14A under the Exchange Act Act) or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of (y) consents to vote any candidate to, the Board;
Medivation stock; (e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gD) form, join or in any way participate in a “group” (within as defined in the meaning Securities Exchange Act of Section 13(d) of 1934 and the Exchange Actrules promulgated thereunder) with respect to the Company involving matters set forth in clauses (A), (B) or (C) of this Section 16.7(a); (E) agree or offer to take, or propose (publicly or otherwise) the taking of, any action referred to in clauses (A), (B), (C) or (D) of this Section 16.7(a); (F) knowingly assist, induce or encourage any other Person to take any action of the type referred to in clauses (A), (B), (C), (D) or (E) of this Section 16.7(a); (G) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the actions items described under clauses foregoing; or (aH) through (f) hereof;request or propose that Medivation or any of Medivation’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 16.7(a).
(hb) knowingly take any action which would The obligations and restrictions of Astellas under Section 16.7(a) shall automatically terminate and be of no further force or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
effect (i) otherwise take upon any Person or cause any action inconsistent with any group acquiring or acquiring the right to acquire beneficial ownership of [*] or more of the foregoing provisions combined voting power of this Section 10.1.
10.2. Notwithstanding the provisions then outstanding voting securities of Section 10.1Medivation (whether by tender offer, exchange offer, open market purchases, merger, acquisition, consolidation or otherwise); (ii) upon Medivation publicly announcing a process designed to solicit offers relating to transactions that, if at any time the percentage consummated, would constitute a merger, consolidation, sale, transfer or other disposition of all or substantially all of the Total Voting Power Beneficially Owned by consolidated assets of Medivation (a “Business Combination”); (iii) upon the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result public announcement of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary offer from a Third Party to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromacquire, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance beneficial ownership of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% [*] or more of the Total Voting Power then outstanding voting securities of Medivation or all or substantially all of the Company), (ii) following the conclusion consolidated assets of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or Medivation; (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company Medivation of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change Business Combination; or (v) upon the board of Controldirectors of Medivation adopting a plan of liquidation or dissolution.
(c) Notwithstanding anything to the contrary in this Section 16.7, nothing in Section 16.7 limits the ability of Astellas to (i) consult with the officers, directors, employees, partners, attorneys, advisors, accountants, agents or representatives of Astellas or of any of its Affiliates on a confidential basis with respect to any of the types of matters referred to in Section 16.7(a), (ii) inquire or make a request, orally or in writing, to Medivation on a confidential basis with respect to any amendment or waiver of any provision of Section 16.7(a) or (iii) make or submit to Medivation a bona fide non-public proposal to the chief executive officer or the board of directors of Medivation at any time so long as in the case of clauses (ii) and (iii) above such action was not designed and would not reasonably be expected to require Medivation to make a public announcement relating thereto.
(d) Nothing in this Section 16.7 prohibits Astellas or any of its Affiliates from acquiring securities of Medivation or any of its subsidiaries or other Affiliates by or through (i) a diversified mutual or pension fund or employee benefit plan managed by an independent investment adviser or pension plan established for the benefit of the employees of Astellas or any of its Affiliates or (ii) any stock portfolios not controlled by Astellas or any of its Affiliates that invest in Medivation or any of its subsidiaries or other Affiliates among other companies on a broadly diversified basis. In addition, nothing in Section 16.7 shall prevent Astellas or any of its Affiliates from acquiring securities of another pharmaceutical or biotechnology company or other person that, at the time Astellas or any of its Affiliates first enters into an agreement to acquire such company’s securities, beneficially owns any securities of Medivation or any of its subsidiaries or other Affiliates.
(e) The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the securities and exchange commission pursuant to rule 24b-2 of the securities exchange act of 1934, as amended.
Appears in 1 contract
Standstill. 10.1. From and after Except as provided in Section 2.3 below or as contemplated under the Closing, without Merger Agreement or otherwise for the prior consent purposes of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% consummation of the Total Voting PowerMerger, and (y) a Pending COC Eventfrom the date hereof until the Expiration Time, none of the Investor shall not, and shall cause its directors, officers, employees, representatives and Rollover Shareholders or any of their respective Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfshall, directly or indirectly:
(a) acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase or otherwise, acquireany beneficial ownership in, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stockany beneficial ownership in, securities of the Company or any subsidiary thereof;
(b) enter into a short ofmake any public announcement (other than any disclosure on Forms 3, 4 or trade in, derivative securities representing the right to vote 5 or economic benefits of Voting Stock Schedules 13D or rights or options to acquire Voting Stock, except 13G to the extent necessary for required by U.S. federal or state securities laws or the Investor rules and regulations promulgated thereunder) with respect to, directly or indirectlysubmit a proposal for or offer of (with or without conditions), engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger merger, recapitalization, reorganization, business combination or other business combination extraordinary transaction involving the Company or any subsidiary thereof;
(c) seek or propose to influence or control the management or policies of the Company, make or in any of its Subsidiaries way participate, directly or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiariesindirectly, or (iii) in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the CommissionSEC) or written consents with respect to vote any Voting Stock voting securities of the Company;
(d) initiate, make Company or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tosubsidiary thereof, or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement person with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies securities of the Company or its Subsidiariesany subsidiary thereof;
(gd) form, join join, become a member of or in any way participate in in, or otherwise encourage the formation of, a “group” (other than with the other Rollover Shareholders) within the meaning of Section 13(d13(d)(3) of the Exchange Act) , in connection with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofforegoing; or
(e) publicly request the other Rollover Shareholders to amend or waive any provision of, or take any action challenging the enforceability or validity of, this paragraph (including this sentence). For the avoidance of doubt, nothing in this Section 2.2 or any other provision of this Agreement shall prohibit (i) otherwise take or cause any action inconsistent with any Rollover Shareholder from acquiring securities of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases Company as a result of an Excluded Issuanceany share split, combination, recapitalization or other similar transaction in or of the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power securities of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% share split, combination, recapitalization or more of the Total Voting Power of other similar transaction has been duly approved by the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to Parent and Merger Sub from entering into the stockholders of Merger Agreement and consummating the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlMerger.
Appears in 1 contract
Sources: Rollover Agreement (Feng Min)
Standstill. 10.1Recipient’s Beneficial Ownership of the Company’s capital stock as of the Effective Date is set forth on Schedule A attached hereto. From and Recipient agrees that, for a period of one year after the Closingdate of this Agreement (the “Standstill Period”), without the prior consent unless specifically invited in writing by Provider, neither it nor any of the Boardits respective Representatives, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and will in any other Affiliates that have received Company Confidential Information, not to, on its behalfmanner, directly or indirectly:
(a) by purchase or otherwiseeffect, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in in, or in any way knowingly assist, or knowingly facilitate assist any other Person to effect or effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, :
(i) any acquisition of any Voting Stock securities (or rights beneficial ownership thereof) or options to acquire all or substantially all of the assets of Provider or any Voting Stock, of its subsidiaries,
(ii) any tender or exchange offer, merger or other business combination involving the Company, Provider or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or subsidiaries,
(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Provider or any of its subsidiaries, or
(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or written consents with respect to vote any Voting Stock voting securities of the CompanyProvider;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gb) form, join or in any way participate in a “group” (within as defined under the meaning of Section 13(d) of the Exchange Act▇▇▇▇ ▇▇▇) with respect to the Company involving any securities of the actions items described under clauses (a) through (f) hereofProvider;
(hc) knowingly make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving Provider or its securities or assets;
(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of Provider;
(e) take any action which would or would reasonably be expected to result in the Company having might force Provider to make a public announcement regarding any of the actions described under clauses types of matters set forth in (a) through (f) hereofabove; or
(if) otherwise take enter into any discussions or cause arrangements with any action inconsistent third party with respect to any of the foregoing provisions of this Section 10.1.
10.2foregoing. Notwithstanding Recipient also agrees during the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates Standstill Period not to request Provider (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromemployees or agents), directly or indirectly, (i) acquiring, agreeing to acquire amend or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to waive any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes provision of this Section 10, a “Pending COC Event” means, the earlier of 9 (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlincluding this sentence).
Appears in 1 contract
Standstill. 10.1. From The Fund covenants and after agrees that, for so long as the Closing, without the prior consent Fund owns Shares that represent 30% or more of total issued and outstanding shares of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting PowerCompany’s Common Stock, and unless such shall have been specifically invited in writing by the Company, neither the Fund (yincluding its general partner, managing limited partner and their respective principals) a Pending COC Event, the Investor shall not, and shall cause nor any of its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and directors or officers will in any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor tomanner, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(ca) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock securities (or rights beneficial ownership thereof) or options to acquire assets of the Company or any Voting Stockof its Subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the Company, Company or any of its Subsidiaries Subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or assets of other extraordinary transaction with respect to the Company or its Subsidiaries constituting a significant portion any of the consolidated assets of the Company and its Subsidiaries, or (iiiiv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to vote any Voting Stock voting securities of the Company;
, (db) initiate, make form or submit any stockholder proposal, whether made pursuant to Rule 14a-8 join in a “group” (as defined under the Exchange Act or otherwiseAct), or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(ec) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of Directors or policies of the Company or its Subsidiaries;
Company, (gd) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in might force the Company having to make a public announcement regarding any of the actions described under clauses types of matters set forth in (a) through above, or (fe) hereof; or
(i) otherwise take enter into any discussions or cause arrangements with any action inconsistent third party with respect to any of the foregoing provisions of this Section 10.1.
10.2foregoing. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market The Fund also agrees during such additional number of shares of Common Stock necessary period not to maintain the Total Voting Power of request the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, fromadvisors or agents), directly or indirectly, to amend or waive any provision of this paragraph (c) (including this sentence). Notwithstanding the foregoing, this Section 9(b) shall not prohibit the Fund from passively participating in any of the events set forth in (a) though (e) above, so long as (i) acquiringthe Fund is not in any way involved in initiating or soliciting other commitments in support of any such events, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), and (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the InvestorFund’s intention activities with respect thereto are limited solely to considering the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, proposed action and electing to participate or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to not participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processaction.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Sources: Master Purchase Agreement (Wells Timberland REIT, Inc.)
Standstill. 10.1. From and after During the Closing, without the prior consent of the BoardRestricted Period, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall Group will not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:indirectly (in each case, except as expressly permitted by this Agreement):
(ad) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except with respect to the extent necessary for Company or the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inVoting Securities, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stockmake, (ii) any tender or exchange offerassist, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiariesparticipate in, or (iii) advise, assist or knowingly encourage any Person with respect to, any “solicitation” of “proxies” (as such terms are term is used in the proxy rules of the CommissionSEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”)) of proxies with respect to, or written consents from the holders of, any Voting Securities, including with respect to the election or removal of directors or any Voting Stock other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the CompanySEC) in any such solicitation of proxies; (iii) seek to advise, assist or knowingly encourage any Person, or knowingly assist any Person in so advising or encouraging any other Person, with respect to the giving or withholding of any proxy or other authority to vote or act; or (iv) initiate or participate in, or advise, assist or knowingly encourage any Person to initiate or participate in, directly or indirectly, any “vote no,” “withhold” or similar campaign;
(de) initiate, make propose or submit otherwise “solicit” (as such term is used in the proxy rules of the SEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) the Company’s stockholders for the approval of any stockholder proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Exchange Act Act, or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election cause or appointment to, knowingly encourage any Person to initiate or representation on, or the nomination of submit any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereundersuch stockholder proposal;
(f) except as expressly contemplated by this Agreement with respect to the Company or the Certificate Voting Securities, (i) communicate with the Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act (provided, that the Investor Group shall not be prohibited or restricted from disclosing its bona fide voting intention on any Extraordinary Transaction (as defined below) pursuant to Rule 14a‑1(l)(2)(iv) promulgated under the Exchange Act); or (ii) conduct, or assist any Person in the conducting of, any type of Designationsbinding or nonbinding referendum;
(g) call or attempt to call, otherwise actor request the call of, alone or in concert with others, or advise, assist or knowingly encourage any Person to seek representation on call, any meeting of Company’s stockholders, whether or not such a meeting is permitted by the Company’s Amended and Restated Certificate of Incorporation (as may be amended or amended and restated from time to control time, the “Charter”) or influence the managementBylaws, Board or policies of the Company or its Subsidiariesincluding a “town hall meeting”;
(gi) seek, alone or in concert with others, or advise, assist or knowingly encourage any Person to seek, any individual’s election or appointment to, or any representation on, the Board; (ii) attempt to nominate or propose or recommend the nomination of, or advise, assist or knowingly encourage any Person to nominate or propose or recommend the nomination of, any candidate to the Board; or (iii) seek, alone or in concert with others, or advise, assist or knowingly encourage any Person to seek, the removal of any member of the Board;
(i) other than solely with other members of the Investor Group with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in any way writing), maintain, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” (within the meaning of as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (whether or not in writing), other than any such voting trust, arrangement or agreement solely among the members of the Investor Group and otherwise in accordance with this Agreement;
(i) make any offer or proposal (with or without conditions) with respect to, or seek, propose or indicate an interest in, any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, sale of all or substantially all of the Company’s assets, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company, any of its subsidiaries or any of its or their respective securities or assets (each, an “Extraordinary Transaction”) (provided, that nothing in this clause (i) shall prohibit the Investor Group from making any confidential proposal to the Company after receiving prior written consent of the Board); (ii) solicit any Person not a party to this Agreement (a “Third Party”) to make an offer or proposal (with or without conditions) with respect to the Company involving any of the actions items described under clauses Extraordinary Transaction, or advise, assist or knowingly encourage or support any Third Party in making such an offer or proposal; (aiii) through publicly comment on any proposal for an Extraordinary Transaction (fprovided, that this clause (iii) hereof;
shall not prevent such public comment made in a manner consistent with Section 3(c)); or (hiv) knowingly take any action which would that would, or would reasonably be expected to result in the Company having to make a to, require public announcement disclosure regarding any of the actions described under clauses types of matters set forth in this Section 3(g) (ait being understood that this Section 3(g) through will not restrict any member of the Investor Group from tendering shares, receiving payment for shares or otherwise participating in any Extraordinary Transaction on the same basis as any other stockholder of the Company);
(fk) hereof; or
make or submit any proposal, request or statement with respect to, or otherwise take any action in relation to, or advise, assist or knowingly encourage any Person in seeking, (i) any change in the Board or management of the Company, including any plan or proposal to change the number or term of directors serving on the Board or to fill any vacancy on the Board; (ii) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (iii) any other material change in the Company’s management, business, operations, strategy or corporate structure; (iv) any waiver of, or amendment or modification to, the Charter or the Bylaws; or (v) any action that could cause 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 to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; provided, that, notwithstanding anything to the contrary set forth in this Agreement, in the event that the Company reduces its quarterly dividend to less than $0.075 per share at any time after the date hereof, unless the Board determined, after consultation with counsel, that such reduction would be consistent with the Board’s fiduciary duties, the Investor Group shall not be restricted from making or submitting any proposal, request or statement with respect to, or otherwise taking any action in relation to, or advising, assisting or knowingly encouraging any Person in seeking to cause the Company to issue, declare and pay a quarterly dividend of $0.075 per share;
(l) 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 law providing for stockholder access to books and records (including lists of stockholders) of the Company;
(m) sell, offer or agree to sell to any Third Party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying Voting Securities;
(n) engage in, or advise, assist or knowingly encourage any Person to engage in, any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or swap transaction) with respect to any security (other than the purchase or sale of call or put options on any major exchange conducted through a brokerage account, without the identity of the seller or purchaser of options being known) that includes, relates to, or derives any significant part of its value from, a decline in the market price or value of the securities of the Company;
(o) compensate, or enter into any agreement, arrangement or understanding (whether written or oral) to compensate, any person for his or her service as a director of the Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to the Company or its securities;
(p) become an “Acquiring Person” (as such term is defined in the Rights Agreement), or otherwise engage in or make, or advise, assist or knowingly encourage any Person to engage in or make, any acquisition, offer, agreement or proposal to acquire, whether by purchase, tender or exchange offer, or otherwise direct any Third Party in the acquisition of any securities of the Company, so that any such Person or Third Party would become an “Acquiring Person” (as such term is defined in the Rights Agreement);
(q) acquire, offer, agree or propose to acquire, 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 a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, or direct any Third Party in the acquisition of, (i) any securities of the Company or any rights decoupled from the underlying securities of the Company that would result in the Investor Group beneficially owning, controlling or otherwise having any voting interest over 9.99% (the “Ownership Cap”) or more of the then‑outstanding Voting Securities; provided, that to the extent the Investor Group (together with its Affiliates) exceeds the Ownership Cap solely by reason of any decrease in the number of the Company’s total outstanding equity securities, stock repurchases, reclassifications, stock combinations or stock cancellations by the Company and the Investor Group does not purchase or otherwise acquire, or offer, seek, propose, or agree to acquire, any additional ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any shares of the Company’s common stock (“Common Stock”), then such increase in the Investor Group’s beneficial ownership shall not be deemed to breach or otherwise violate this Section 2(n), or (ii) any assets or liabilities of the Company;
(r) other than through open market broker sale transactions for which the identity of the purchaser is not known or in underwritten widely dispersed public offerings, sell, offer, assign or otherwise dispose, or agree to sell, offer, assign or otherwise dispose, through swap or hedging transactions or otherwise, any securities of the Company to any Third Party that is a Known Activist or has known plans to engage in activism;
(s) make or disclose in a manner that could reasonably be expected to become public any intent, purpose, plan or proposal that is inconsistent with the provisions of this Agreement, except as required by law or applicable stock exchange listing;
(t) act, including by making public announcements or speaking to reporters or members of the media (whether “on the record” or on “background” or “off the record”), to seek (i) to influence the Company’s stockholders, employees, officers or directors with respect to the Company’s governance, employees, management, policies, operations, strategy, balance sheet, capital allocation, marketing approach or business configuration or any Extraordinary Transaction; (ii) to obtain representation on the Board; or (iii) the removal or replacement of any member of the Board in any manner or the filling of any vacancy on the Board;
(u) make a demand for, or seek to initiate, or advise, assist or knowingly encourage any Person to make a demand for or initiate, an investigation of the Company or any of the Company’s current or former directors or officers, including by seeking to engage any private investigations firm or other Person to conduct an investigation;
(v) enter into any discussions, negotiations, agreements or understandings (in all cases whether written or oral) with any Person with respect to any action the Investor Group is prohibited from taking pursuant to this Section 3, or advise, assist, knowingly encourage or seek to persuade any person to take any action or make any statement with respect to any such action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing provisions foregoing; or
(w) make any request or submit any proposal to amend or waive the terms of this Section 10.1.
10.2Agreement other than through non-public communications with the Company that would not be reasonably likely to trigger a public disclosure obligation for any Party. Notwithstanding anything to the provisions of contrary in this Agreement, nothing in this Agreement, including the restrictions in this Section 10.13, if at shall (i) prohibit or restrict any time the percentage member of the Total Voting Power Beneficially Owned Investor Group from (A) making any true and correct statement to the extent required by applicable legal process, subpoena or legal requirement from any governmental authority with competent jurisdiction over such member of the Investor and its Affiliates (together, the “Investor Parties”) decreases Group so long as such request did not arise as a result of an Excluded Issuance, any action by any member of the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power Group; or (B) communicating privately with any director or executive officer of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is manner consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors Agreement and/or in the Certificate of Designations and this Agreement and the exercise a manner consistent with communications that may be reasonably made by such Preferred Directors of their rights and fiduciary duties as directors all stockholders of the Company; , so long as such communications are not intended to, and (II) if would not reasonably be expected to, require any public disclosure of such communications by any Party or privately requesting from the Board determines to engage in or management a process that could give rise to a Change waiver of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes provision of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of ControlAgreement, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement prevent or otherwise fails to make a “stop-look-and-listen” communication to the stockholders affect any obligations or performance of the Company within such time period, (b) the execution obligations by the Company of a definitive agreement which if consummated will result any Party in a Change of Control, connection with Section 2 or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlSection 3(a).
Appears in 1 contract
Sources: Letter Agreement (Immersion Corp)
Standstill. 10.1. From and after (a) For a period of six (6) years from the Closing, without Closing (the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event“Standstill Period”), the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and shall ensure that none of its Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor Person to, directly or indirectly, engage without the prior consent of a majority of the Company Nominated Directors who are Independent Directors:
(i) acquire or agree to acquire (whether by purchase, tender or exchange offer, through acquisition of control of another Person, by joining a 13D Group, through the use of a derivative instrument or voting agreement, or otherwise), Beneficial Ownership of any Equity Securities, or any Economic Right or Voting Right to or regarding any Equity Securities, or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in a collared hedging transaction each case, if the effect of such acquisition would be that the Common Stock following Beneficially Owned in the conclusion aggregate by the Investor and its Affiliates (including, without limitation, any 13D Group of which any Investor or any Affiliate thereof is a member), or with respect to which the period set forth Investor, its Affiliates or any such 13D Group would have Economic Rights or Voting Rights, would exceed the Standstill Limit (it being understood that in the event that there shall be more than one (1) Investor, all shares Beneficially Owned and all Economic Rights and Voting Rights held by all Investors and all other Persons that are participants in any 13D Group of which any Investor is a member shall be aggregated, and deemed Beneficially Owned and held by each Investor, for purposes of this Section 93.2(a)(i));
(cii) (A) make or in any way participate in any “solicitation” of “proxies” (as such terms are used in the rules and regulations of the SEC) with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor or any Affiliate or (y) in accordance with and consistent with the recommendation of the Board);
(iii) deposit any Voting Stock or Series B Shares in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock or Series B Shares to any arrangement or agreement with any Person (other than between the Investor and any of its First Tier Affiliates) with respect to the voting of such Voting Stock or Series B Shares;
(iv) join a 13D Group (other than a group comprising solely of the Investor and its Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock, Series B Shares or Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effecteffect any Change of Control or any acquisition of Equity Securities in excess of the Standstill Limit;
(vi) otherwise act, or announce any intention to effect or cause or participate in alone or in any way knowingly assistconcert with others, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition control of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;Company; or
(gvii) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly otherwise take any action which that would or would could reasonably be expected to result in compel the Company having to make a public announcement (including any disclosure required to be made in any SEC filing under the rules and regulations of the SEC) regarding any of the actions described matters set forth in this Section 3.2(a). Notwithstanding the foregoing, the restrictions contained in this Section 3.2(a) shall not (A) apply with respect to the election of the Series B Directors by Investor and its Permitted Transferees in accordance with the Certificate of Designation, (B) prevent, restrict, encumber or in any way limit the ability of any Series B Director to vote on matters, make non-public statements to officers, employees, agents, management or other Directors or to take any action or make any statement at any meeting of the Board or any committee or subcommittee thereof in his or her capacity as a Director, (C) apply to or restrict any non-public discussions or other non-public communications between or among directors, members, officers, employees or agents of the Investor or any First Tier Affiliate of the Investor, or (D) restrict any disclosure or statements required to be made by any Series B Director or the Investor under clauses applicable law.
(ab) through If during the Standstill Period the Investor is entitled (fas a result of dilution due to future share issuances by the Company) hereof; orto purchase shares of Common Stock (up to the Standstill Limit) in compliance with this Section 3.2, then unless the Board otherwise approves such purchases shall be made in full compliance with all applicable securities laws, but shall not be made by means of any tender offer.
(c) The restrictions set forth in Section 3.2(a) shall terminate if, at any time during the Standstill Period, (i) otherwise take or cause any action inconsistent with any the Company publicly announces its entry into a definitive agreement, the consummation of which would result in a Change of Control, and such agreement has not been approved by a majority of the foregoing provisions Series B Directors, (ii) the Company shall have waived the terms of its Rights Agreement to permit any Person (other than the Investor or any 13D Group of which the Investor is a member) to effect a Change of Control or otherwise acquire more than fifteen percent (15%) of the outstanding Common Stock, and such transaction has not been approved by a majority of the Series B Directors, or (iii) any Person (other than the Investor or any Affiliate of the Investor or any 13D Group of which the Investor or any Affiliate of the Investor is a member) shall have commenced a bona fide public tender or exchange offer which if consummated would result in a Change of Control, unless the Board recommends against such tender or exchange offer within ten (10) Business Days after the commencement (as such term is defined in Rule 14d-2 under the Exchange Act) thereof and thereafter continues to oppose such tender or exchange offer. If (x) the restrictions set forth in Section 3.2(a) shall have terminated as provided in this Section 10.13.2(c), and (y) any definitive agreement described in clause (i) above, or transaction described in clause (ii) above, or tender or exchange offer described in clause (iii) above, as the case may be, shall have been terminated or abandoned prior to consummation thereof, and (z) any alternative offer or proposal by Investor in response to any such agreement, transaction, tender offer or exchange offer shall also have been abandoned or withdrawn prior to consummation thereof, then the restrictions set forth in Section 3.2(a) shall be reinstated.
10.2. Notwithstanding (d) If during the provisions Standstill Period the Board elects to commence a process intended to lead to a proposal with respect to Change of Section 10.1Control of the Company (whether in response to a proposal from a third party or otherwise), the Company will notify the Investor of the Board’s election and will permit the Investor to participate in such process as a potential bidder, if at the Investor so elects, on the same terms and conditions as third party participants. As a condition to the Investor’s participation in such process, the Board may require that the Investor agree in writing with the Company that if such process results in the Board’s approval of a Change of Control transaction with a Person other than the Investor that is a Superior Proposal as compared to any time bona fide written proposal from the percentage Investor, then the Investor will consent to such transaction, will raise no objection to the consummation thereof, and will tender shares of Equity Securities Beneficially Owned by it, as applicable, upon the consummation of such transaction. In the event that any such transaction requires the approval of the Total Company’s stockholders, the Investor agrees, if the matter is brought to a vote at a stockholder meeting, that the Investor will be present, in person or by proxy, as holders of Voting Power Stock, at all such meetings and be counted for determining the presence of a quorum at such meetings and will vote for the approval of any such transaction approved and recommended by the Board. So long as the Board continues to recommend such transaction, the Investor agrees to vote and to use reasonable efforts to cause its Affiliates, as the case may be, to vote all shares of Voting Stock Beneficially Owned by the Investor and its Affiliates (togetherin favor of such transaction and for the approval of the terms thereof and in opposition to any and all other proposals that are intended, or could reasonably be expected to delay, prevent, impair, interfere with, postpone or adversely affect the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power ability of the Company to consummate the proposals that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives are approved and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned recommended by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processBoard.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Standstill. 10.1. From 3.1 You agree and undertake that, without our prior written consent, until the date falling 9 months after the Closingdate of this letter, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall you will not, and shall cause its directors, officers, employees, representatives and will procure that your Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Informationperson acting in concert with you or them, will not to, on its behalf, directly or indirectly:
(aA) by purchase or otherwise, acquire, agree procure or induce any other person to acquire any interest in the Company’s securities (the “Securities”) or offer enter into any agreement, arrangement or understanding (whether legally binding or not) or do or omit to do any act as a result of which it or any other person may acquire Voting Stock or direct or indirect such an interest in the Securities other than securities issued pursuant to any rights or options granted in relation to acquire Voting Stock;the Securities held by such person on the date of this letter; or
(bB) initiate, continue or engage discussions, or have any contact or communication of any kind whatsoever in connection with the Proposed Transaction, with any shareholder of the Company (or encourage any shareholder of the Company to oppose or seek to influence the Company’s strategy or management); or
(C) enter into a short ofany agreement, arrangement or trade in, derivative securities representing the right to vote understanding (whether legally binding or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, not) which imposes (directly or indirectly) obligations or restrictions on any party to such agreement, engage in a collared hedging transaction arrangement or understanding with respect to the exercise of voting rights attaching to any of the Common Stock following the conclusion of the period set forth in Section 9;Securities; or
(cD) effect enter into any agreement, arrangement, understanding or seek, offer transaction or propose do or omit to do any act as a result of which either party or any person acting in concert with it may become obliged (whether publicly under the Code or otherwise) to effect, or announce make any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, general offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options invitation to acquire any Voting StockSecurities; or
(E) enter into any agreement, arrangement or understanding (iiwhether legally binding or not) with any tender person relating to or exchange in connection with the making by such person (or other person acting in concert with such person) of any offer, merger invitation or solicitation for any Securities;
(F) make any announcement (other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used than an announcement required to be made in the proxy rules of the Commissioncircumstances referred to in paragraph 5.2) or written consents with respect to any Voting Stock offer or potential offer to acquire any shares of the Company, or with respect to any scheme, arrangement or transaction regarding the Company; or
(G) announce, or procure or induce any other person to announce, any proposal to do any of the matters referred to in paragraphs 3.1(A) to 3.1(F).
3.2 The restrictions in paragraph 3.1 shall not apply:
(A) so as to prevent any of your advisers from taking any action for their own account or the accounts of their customers in the normal course of that person’s investment or advisory business, provided such action is not taken on the instructions of, or otherwise in conjunction with or on your behalf or on behalf of any of your other Authorised Representatives who are in receipt of Confidential Information; or
(B) if, at any time, any person (other than you or any person acting in concert with you):
(1) makes, or announces a possible offer or a firm intention to make, a general offer, to acquire Securities carrying over 30% of the voting rights (as defined in the Code) in the Company;
(d2) initiate, make announces a mandatory offer or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under incurs a mandatory offer obligation in respect of the Exchange Act or otherwise, Company; or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to
(3) acquires, or representation onannounces an intention to acquire, all or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations substantially all of the Investor hereunder;
(f) except as expressly contemplated by this Agreement undertakings, assets or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies business of the Company or its Subsidiaries;enters into any other arrangement in each case which, if completed, would be reasonably likely to preclude the Proposed Transaction.
(gC) form, join or if you announce a Rule 9 waiver proposal (as referred to in any way participate in a “group” (within the meaning of Section 13(d) Note 1 of the Exchange Act) with respect to the Company involving any Notes on Dispensations from Rule 9 of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofCode); or
(iD) otherwise take so as to prevent you or cause any action inconsistent with any of your Affiliates from acquiring any company which holds or is interested in Securities, except where the foregoing provisions of this Section 10.1principal reason for the purchase is to acquire an interest in the Securities.
10.2. Notwithstanding 3.3 The restrictions in paragraph 3.1(B) shall not apply:
(A) from the provisions of Section 10.1, if at any time date that is (a) 10 days after the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of date that the Company notifies you that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant the Company is terminating discussions with you in relation to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends Proposed Transaction or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), that (ii) following the conclusion Company’s board of directors is not minded unanimously to recommend an offer by you to acquire all of the period set forth issued and to be issued shares in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned at the indicative offer price previously notified by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect you in writing to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related Company prior to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Controldate hereof, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer whichor, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, earlier (b) 7 days prior to the execution expiry of any ‘put up or shut up’ period under Rule 2.6(a) of the Code following an announcement by the Company of a definitive agreement possible offer by you to acquire all of the issued and to be issued shares in the Company; or
(B) if, on or after the date that is (a) 21 days after the date of this letter, you notify the Company that, acting reasonably and setting out the grounds on which you have reached such conclusion, you consider that the Company is no longer actively working towards the announcement of a firm intention to make an offer by you to acquire all of the issued and to be issued share capital in the Company and the Company has not within 10 days of such notification taken such steps as you may reasonably request to remedy your concerns, or, if consummated will result in a Change earlier (b) 7 days prior to the expiry of Control, any ‘put up or (cshut up’ period under Rule 2.6(a) of the public Code following an announcement by the Company of a possible offer by you to acquire all of the issued and to be issued shares in the Company; or other than, in either case, in circumstances where you have notified the Company that it recommends you intend to reduce the indicative offer price previously notified by you in writing to the Company prior to the date hereof and provided always that you provide the Company with prior written notice of the name of any transaction thatshareholder of the Company in advance of any discussions, if consummatedcontact or communication of any kind whatsoever in connection with the Proposed Transaction with such shareholder of the Company.
3.4 For the avoidance of doubt, would result notwithstanding the provisions of paragraph 2, in a Change the event that the restrictions in paragraph 3.1(B) cease to apply in the circumstances set out in paragraph 3.3, nothing in this letter will, subject to compliance by you with all applicable law and regulations including the Code and the UK Market Abuse Regulation, prevent you from discussing the existence of Controldiscussions and negotiations in relation to the Proposed Transaction with shareholders of the Company (including identifying the indicative offer price previously notified by you in writing to the Company prior to the date hereof).
Appears in 1 contract
Sources: Confidentiality Agreement
Standstill. 10.1. From and after the Closing, without the prior consent of the Board, the Investor Each Purchaser hereby agrees that that, until the Standstill Termination Date, unless specifically consented in writing by the Company to do so, neither such time as the earlier to occur Purchaser nor its Affiliates will, or will cause or knowingly permit any of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its or their directors, officers, employeespartners, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not managers or employees to, on its behalfin any manner, directly or indirectly:
: (a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(ci) effect or seek, initiate, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assistadvise or, or knowingly facilitate assist any other Person person to effect or seek, initiate, offer or propose (whether publicly or otherwise) to effect or cause or participate in, (i) any acquisition of any Voting Stock equity or rights equity-linked securities (or options to acquire any Voting Stock, (ii) beneficial ownership thereof); any tender or exchange offer, merger merger, consolidation or other business combination involving the Company; any recapitalization, any of its Subsidiaries restructuring, liquidation, dissolution or assets of other extraordinary transaction with respect to the Company Company; or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the CommissionSEC) or written consents with respect to vote any Voting Stock voting securities of the Company;
, provided, however, that notwithstanding the foregoing, nothing in this clause (di) initiateshall prevent or limit (a) the ability of any director of the Company that is affiliated with such Purchaser to acquire, make exercise or submit dispose of any stockholder proposalstock options or other equity securities of the Company received as compensation for serving as a director, whether made pursuant or perform his or her duties as a director of the Company or (b) the Purchasers and their Affiliates (and their respective directors, officers, partners, managers or employees) from purchasing equity or equity-linked securities of the Company, provided such purchases neither (x) cause any of Purchasers or their Affiliates, as a “person” or as part of a “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), to Rule 14a-8 become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act Act), directly or otherwiseindirectly, orof more than 27.5% of the total voting power of the Company’s voting stock nor (y) result in the aggregate of all equity or equity-linked securities held by the Purchaser and their Affiliates, except together with the Underlying Securities, to amount to more than 27.5% of the outstanding Common Stock on a Fully-Diluted Basis; provided, further, that, notwithstanding anything to the contrary in this Section 6.8, at any time or from time to time following receipt of any Requisite Stockholder Approval (as expressly contemplated by this defined in | either the Warrant Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate toDesignations ), the Board;
(e) deposit Purchasers and their Affiliates will not be prohibited from exercising, converting or exchanging any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies securities of the Company then-held (including the Warrants and the warrants issued under that certain Warrant Agreement dated as of March 8, 2022, between the Company and the other signatories thereto) for shares of Common Stock (for purposes of this clause (i), if any Requisite Stockholder Approval is obtained, then such approval will be deemed to constitute a purchase of equity securities by the Purchasers or its Subsidiaries;
their Affiliates in an amount equal to the amount by which the beneficial ownership of the Purchasers or their Affiliates increases as a result of such approval); (gii) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of as defined under the Exchange Act) with respect to any securities of the Company involving that seeks to do any of the actions items described under clauses prohibited by clause (ai) through above; (fiii) hereof;
otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, provided, however, that notwithstanding the foregoing, nothing in this clause (hiii) knowingly shall prevent or limit the ability of any director of the Company that is affiliated with such Purchaser to serve as a director, or perform his or her duties as a director of the Company or any related activities of such Purchaser’s officers, employees or representatives in support of such director; (iv) take any action which would or would could reasonably be expected to result in force the Company having to make a public announcement regarding any of the types of matters set forth in this Section 6.8 (other than actions described under clauses taken by a director of the Company in the performance of his or her duties as such); or (av) through (f) hereof; or
(i) otherwise take enter into any agreements, discussions or cause arrangements with any action inconsistent third party with respect to any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned (other than ordinary course discussions by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power director of the Company that in the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”performance of his or her duties as such).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.”
Appears in 1 contract
Standstill. 10.1. From and after the Closing, without the prior consent of the Board, (a) So long as the Investor hereby agrees that until such time as owns Registrable Common Stock or has the earlier right to occur of acquire Registrable Common Stock or has a contingent or non-contingent right to receive a Series II Exchange Warrant and/or Series III Exchange Warrant pursuant to this Agreement exercisable for Registrable Common Stock (x) it ceases to Beneficially Own 5% of the Total Voting Power“Standstill Period”), and (y) a Pending COC Event, the Investor shall not, and shall cause each of its directors, officers, employees, representatives and controlled Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to: (i) other than with respect to the Warrant Shares or shares of Common Stock issuable upon exercise of the 2006 Warrant, on its behalf, directly or indirectly:
(a) by purchase or otherwiseas applicable, acquire, agree or propose to acquire (whether publicly or offer to acquire Voting Stock otherwise) beneficial ownership of any equity securities or direct assets, or indirect rights or options to acquire Voting Stock;
any such securities or assets (b) enter into a short ofthrough purchase, exchange, conversion or trade inotherwise), of Parent or any of its Subsidiaries, including derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, such securities; (ii) make, effect or commence any tender or exchange offer, merger or other business combination involving the Company, Parent or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or ; (iii) consummate or commence any recapitalization, restructuring, liquidation or, dissolution with respect to Parent or any of its Subsidiaries; (iv) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) proxies to vote or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment toconsent, or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement Person with respect to the voting of, any voting securities of Parent or any Voting Stock that is inconsistent with of its Subsidiaries (but without limiting stockholders’ rights to vote the voting obligations of the Investor hereunder;
securities); (f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gv) form, join or in any way participate in a “group” (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect to the Company involving to, or otherwise act in concert with any Person in respect of, any voting equity securities of Parent or any of its Subsidiaries; (vi) negotiate with any Person with respect to, or make any statement or proposal to any Person with respect to, or make any public announcement (except as required by law) or proposal or offer whatsoever with respect to, or act as a financing source for or otherwise invest in any other Persons (other than in its or its Affiliates’ investment management, banking, brokerage, securities or similar business and other such insubstantial investments in the ordinary course of business) in connection with, or otherwise solicit, seek or offer to effect any transactions or actions items described under in the foregoing clauses (ai) through (f) hereof;
(h) knowingly take vii), or make any action which would other proposal or statement inconsistent with the terms of this Section 3.1 or that otherwise would reasonably be expected to result in the Company having to make a public announcement regarding any of the such transactions or actions described under clauses (aexcept as required by law); or (viii) through (f) hereof; or
(i) otherwise take knowingly advise, assist, or cause encourage any action inconsistent other Persons in connection with any of the foregoing provisions (other than in its or its Affiliates’ investment management, banking, brokerage, securities or similar business); unless and until, in the case of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage each of the Total Voting Power Beneficially Owned by foregoing clauses (i) through (vii), the Investor and has received the prior written invitation or approval of Parent’s Board of Directors to do so. (b) During the Standstill Period, Investor, together with its Affiliates (togetherwhose ownership of Common Stock would be aggregated with the Investor for determinations of beneficial ownership pursuant to this paragraph), shall not become a beneficial owner of more than 29.5% of the outstanding Common Stock (the “Investor PartiesCap”) decreases as a result of an Excluded Issuance(beneficial ownership shall have the meaning set forth in Rules 13d-3 and 13d-5 under the Exchange Act, the Investor Parties may acquire in the secondary market such additional number of except that it shall include shares of Common Stock necessary that Investor or such Affiliates have the right to maintain acquire, whether such right is exercisable immediately or only after the Total Voting Power passage of time). The Cap shall not apply if bankruptcy or liquidation proceedings have commenced by or on behalf of the Company that the Investor Parties Beneficially Owned immediately prior Company. The Cap shall be automatically increased to such Excluded Issuance (higher percentage of Common Stock as may be permitted in the “Additional Shares”).
10.3future without triggering change in control covenants in any credit agreement, indenture or management agreement of Parent and/or the Company. Notwithstanding By way of example, if the provisions change in control trigger in the Credit Agreement and all of Section 10.1the Company’s management agreements were increased to 33%, (I) nothing the Cap would be increased to 32.5%. In addition, the Cap shall not apply in this Agreement shall prohibit the event that a change in control or restrict similar event, not caused by actions of the Investor or its directorsAffiliates, officersoccurs and results in repurchase obligations, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly defaults or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention acceleration with respect to the voting all credit agreements, indentures or other indebtedness containing such a provision of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by Parent and/or the Company that it recommends any transaction thatcontain such change in control covenants that are not otherwise waived (and without regard to consequences under management agreements) (a “Cap Termination”). For the avoidance of doubt, if consummated, would result in a Change of Control.the parties intend the Cap to prohibit Investor’s 14
Appears in 1 contract
Sources: Debt Exchange Agreement
Standstill. 10.1. From and after Until the Closing, without the prior consent of the BoardTermination Date, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor Engaged Group shall not, and shall cause each of its directors, officers, employees, representatives Affiliates and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, Associates not to, on its behalf, directly or indirectly, in any manner, alone or in concert with others, in each case without the prior written waiver authorized by the Board:
(a) by purchase or otherwise, (i) acquire, cause to be acquired, or offer, seek or agree to acquire acquire, whether by purchase, tender or offer to acquire Voting Stock exchange offer, through the acquisition of control of another person, by joining or forming a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single “person” under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise (the taking of any such action, an “Acquisition”), beneficial ownership of any securities or assets of the Company (or any direct or indirect rights or options to acquire such ownership, including voting rights decoupled from the underlying Voting Stock;
(bSecurities) enter into a short ofsuch that after giving effect to any such Acquisition, the Engaged Group or trade in, derivative securities representing the right to vote or economic benefits any of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toits Affiliates and Associates holds, directly or indirectly, engage in a collared hedging transaction excess of 9.9% of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting StockSecurities, (ii) any tender acquire, cause to be acquired or exchange offer, merger seek or other business combination involving the Companyagree to acquire, whether by purchase or otherwise, any of its Subsidiaries or assets interest in any indebtedness of the Company or its Subsidiaries constituting a significant portion (iii) acquire, cause to be acquired or offer, seek or agree to acquire, ownership (including beneficial ownership) of the consolidated assets any asset or business of the Company and its Subsidiariesor any right or option to acquire any such asset or business from any person, or in each case in this clause (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock other than securities of the Company;
(db) initiateexcept as otherwise provided in Section 1, make (i) nominate, give notice of an intent to nominate, or recommend for nomination a person for election to the Board or take any action in respect of the removal of any director, (ii) seek or knowingly encourage any person to submit any nomination in furtherance of a “contested solicitation” or take any other action in respect of the election or removal of any director, (iii) submit, or seek or knowingly encourage the submission of, any stockholder proposal, whether made proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise) for consideration at, oror bring any other business before, except any Stockholder Meeting, (iv) request, or knowingly initiate, encourage or participate in any request, to call a Stockholder Meeting, (v) publicly seek to amend any provision of the Charter, the Bylaws, or other governing documents of the Company (each as expressly contemplated by may be amended from time to time), or (vi) take any action similar to the foregoing with respect to any subsidiary of the Company; provided, however, that nothing in this Agreement shall prevent the Engaged Group or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the Company’s 2025 annual meeting of stockholders (the “2025 Annual Meeting”) so long as such actions do not create a public disclosure obligation for the Engaged Group or the Certificate Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with the Engaged Group’s normal practices;
(c) solicit any proxy, consent or other authority to vote of Designations, otherwise seek the election stockholders or appointment conduct any other referendum (binding or non-binding) (including any “withhold,” “vote no” or similar campaign) with respect to, or representation onfrom the holders of, Voting Securities, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the nomination Exchange Act) in, or knowingly assist, advise, initiate, encourage or influence any person (other than the Company) in, any “solicitation” of any candidate toproxy, consent or other authority to vote any Voting Securities (other than such assistance, advice, encouragement or influence that is consistent with the Board’s recommendation in connection with such matter); provided, however, that the foregoing shall not restrict the Engaged Group from stating how it intends to vote with respect to an Extraordinary Transaction, if any, and the reasons therefor;
(ed) (i) grant any proxy, consent or other authority to vote with respect to any matters for any Stockholder Meeting or (ii) deposit any Voting Stock Securities in any voting trust or subject any Voting Stock Securities to any arrangement or agreement with respect to the voting of any Voting Stock Securities, in each case of clauses (i) and (ii) other than (A) customary brokerage accounts, margin accounts, prime brokerage accounts and the like, (B) granting any proxy, consent or other authority to vote in any solicitation approved by the Board and consistent with the recommendation of the Board, (C) granting any proxy, consent or other authority to vote in any solicitation in connection with any matter for which the Engaged Group has voting discretion pursuant to, and in accordance with, Section 2, and (D) otherwise in accordance with this Agreement;
(e) knowingly encourage, advise or influence any person or knowingly assist or direct any person in so encouraging, advising or influencing any person, with respect to the giving or withholding of any proxy, consent or authority to vote any Voting Securities or in conducting any referendum (binding or non-binding) (including any “withhold,” “vote no,” or similar campaign), in each case other than such encouragement, advice or influence that is inconsistent consistent with the voting obligations of the Investor hereunderBoard’s recommendation in connection with such matter or otherwise in connection with an Extraordinary Transaction;
(f) except as expressly contemplated by this Agreement or without the Certificate prior written approval of Designationsthe Board, otherwise act, alone separately or in concert conjunction with othersany other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to seek representation on act as broker or agent for compensation, publicly propose, suggest or recommend, or in a manner that the Engaged Group is required under applicable law, rule or regulation to control disclose publicly, any Extraordinary Transaction; provided, however, that nothing in this Section 3 shall be interpreted to prohibit the Engaged Group from proposing, suggesting or influence the management, Board or policies of recommending any Extraordinary Transaction privately to the Company so long as any such action is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Engaged Group or its Subsidiariesany other person;
(g) form, join join, encourage the formation of, or in any way participate in a “group” any partnership, limited partnership, syndicate or group (within the meaning of Section 13(d13(d)(3) of the Exchange Act) with respect to the Company involving any Voting Securities (other than a group that includes all or some of the actions items described under clauses (a) through (f) members of the Engaged Group, but does not include any other entities or persons that are not members of the Engaged Group as of the date hereof; provided that nothing herein shall limit the ability of an Affiliate of the Engaged Group to join such group following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement);
(h) knowingly take make a request for a list of the Company’s stockholders or for any action which would or would reasonably be expected to result in books and records of the Company having pursuant to make a public announcement regarding any Section 220 of the actions described under clauses (a) through (f) hereofDelaware General Corporation Law; or
(i) otherwise make or publicly advance any request or proposal to amend, modify or waive any provision of this Agreement, or take or cause any action inconsistent with challenging the validity or enforceability of any provision of or obligation arising under this Agreement; provided that the Engaged Group may make confidential requests to the Board to amend, modify or waive any provision of this Agreement, which the Board may accept or reject in its sole and absolute discretion, so long as any such request is not publicly disclosed by the Engaged Group and is made by the Engaged Group in a manner that would not reasonably be expected to require the public disclosure thereof by the Company, the Engaged Group or any other person. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 10.1.
10.2. Notwithstanding 3 shall not be deemed to restrict the provisions of Section 10.1, if at Engaged Group from: (i) communicating privately with the Board or any time the percentage of the Total Voting Power Beneficially Owned by the Investor Company’s officers regarding any matter, so long as such communications are not intended to, and its Affiliates would not reasonably be expected to, require any public disclosure of such communications, (together, the “Investor Parties”ii) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power communicating privately with stockholders of the Company and others in a manner that does not otherwise violate this Section 3 or Section 6, or (iii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has jurisdiction over the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (Engaged Group. Furthermore, for the “Additional Shares”).
10.3. Notwithstanding the provisions avoidance of Section 10.1doubt, (I) nothing in this Agreement shall prohibit or be deemed to restrict in any way the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) New Director in the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant exercise of the New Director’s fiduciary duties to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Standstill. 10.1. From ▇▇▇▇▇ covenants and after agrees that, for a period of seven years from the Closingdate of this Agreement, without unless specifically invited in writing by the prior consent Company, neither he, his affiliates (as such term is defined under the Securities Act of 1934 (the Board"Act")), the Investor hereby agrees that until such time as the earlier nor investment entities with respect to occur of which he has sole investment control (xincluding individual investment accounts with respect to which he has discretionary control) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfshall, directly or indirectly:
, (ai) by purchase or otherwise, acquire, agree to acquire or offer make any proposal to acquire Voting any securities (or beneficial ownership thereof) or, material portion of the assets of the Company or any of its subsidiaries, except for the exercise of the 1998 Options received by ▇▇▇▇▇ pursuant to the Stock or direct or indirect rights or options Option Agreement dated as of October 19, 1998 (the "Stock Option Agreement") in consideration for entering into the Consulting Agreement dated September 19, 1997, as amended pursuant to acquire Voting Stock;
Section 9 hereof (bthe "Consulting Agreement"), (ii) propose to enter into a short ofany tender or exchange offer, merger or trade in, derivative securities representing other business combination involving the right Company or any of its subsidiaries or to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor topurchase, directly or indirectly, engage in a collared hedging transaction material portion of the Common Stock following the conclusion assets of the period set forth in Section 9;
Company or any of its subsidiaries, (ciii) effect or seekeffect, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate assist any other Person person to effect or seekeffect, offer or propose (whether publicly or otherwise) to effect effect, propose or participate in any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries, (iv) make, or in any way participate in, (i) any acquisition "solicitation" of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “"proxies” " (as such terms are used in the proxy rules of the Securities and Exchange Commission) or written consents with respect consent to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment tovote, or representation on, advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement person with respect to the voting of any Voting Stock that is inconsistent with the voting obligations securities of the Investor hereunder;
Company or any of its subsidiaries, (fv) except form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as expressly contemplated by this Agreement amended) with respect to any voting securities of the Company or the Certificate any of Designationsits subsidiaries, (vi) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of Directors or policies of the Company Company, (vii) disclose any intention, plan or its Subsidiaries;
arrangement inconsistent with the foregoing, (gviii) formrequest any item be placed before the Company's stockholders for a vote thereof or (ix) advise, join assist or encourage any other persons in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) connection with respect to the Company involving any of the actions items described under clauses foregoing. ▇▇▇▇▇ also agrees that during such period not to (ax) through request the Company (for any of its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Agreement (including this sentence) hereof;
or (hy) knowingly take any action which would or would reasonably be expected to result in might require the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any types of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period matters set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processparagraph.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Standstill. 10.1. From (a) Each member of the Arbor Group severally, and after not jointly, agrees that, for a period of 12 months from the Closingdate of this Agreement, without the prior written consent of the Board specifically expressed in a written resolution adopted by a majority vote of the entire Board, the Investor hereby agrees that until such time as the earlier to occur of (x) he or it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall will not, and shall will cause each of his or its directors, officers, employeesagents and other Persons, representatives and including any Affiliates controlled by (but not under common control with) or Associates identified in the Investor and any other Affiliates that have received Company Confidential InformationArbor Schedule 13D as members of the "Arbor Group" as therein defined, acting on his or its behalf not to, on its behalf, directly or indirectly:
(ai) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short ofengage, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toin any way participate, directly or indirectly, engage in any “solicitation” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of proxies or consents (whether or not relating to the election or removal of directors); advise, encourage or influence any Person (as herein defined) with respect to the voting of any Voting Securities with respect to the 2008 Annual Meeting or any other meeting of the Company’s stockholders that occurs prior to the termination of this Agreement in a collared hedging transaction manner that is inconsistent with the terms of this Agreement; nominate or propose any person for election to the Board; or initiate, propose or otherwise “solicit” (as such term is defined in Rule 14a-1(l) promulgated by the SEC under the Exchange Act) stockholders of the Common Stock following Company for the conclusion approval of stockholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 or exempt solicitations pursuant to Rule 14a-2(b)(1) or Rule 14a-2(b)(2) under the period set forth in Section 9;
(c) effect Exchange Act or seek, offer otherwise induce or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate encourage any other Person to effect initiate any such stockholder proposal; or seek, offer otherwise communicate with the Company’s stockholders or propose (whether publicly or otherwiseothers pursuant to Rule 14a-1(1)(2)(iv) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, under the Exchange Act;
(ii) other than in connection with Section 2 hereof, seek or propose, or make any statement with respect to, any merger, consolidation, business combination, tender or exchange offer, merger sale or other business combination purchase of assets, sale or purchase of securities (except that the Arbor Group may seek or propose a sale or purchase of the shares of the Company beneficially owned by the Arbor Group as of the date hereof), dissolution, liquidation, restructuring, recapitalization or similar transactions of or involving the Company, Company or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or Affiliates;
(iii) form, join or in any way participate in any “solicitation” of “proxiesgroup” (as such terms are used in within the proxy rules meaning of Section 13(d)(3) of the CommissionExchange Act) or written consents with respect to any Voting Stock Securities, other than a “group” that includes all or some lesser number of the Persons identified as “Reporting Persons” in the Arbor Schedule 13D, but does not include any other members who are not currently identified as Reporting Persons;
(iv) act, alone or in concert with others, to control or seek to control, or influence or seek to influence, the management, Board or policies of the Company;
(dv) initiateother than as previously disclosed in the Arbor Schedule 13D, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock Securities in any voting trust or subject any Voting Stock Securities to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunderSecurities, except as expressly set forth in this Agreement;
(fvi) except as expressly contemplated by this Agreement knowingly enter into any arrangements, understanding or the Certificate of Designationsagreements (whether written or oral) with, otherwise actor advise, alone finance, assist or encourage, any other Person in concert connection with others, to seek representation on or to control or influence the management, Board or policies any of the Company foregoing, or its Subsidiariesmake any investment in or enter into any arrangement with, any other Person that engages, or offers or proposes to engage, in any of the foregoing;
(gvii) form, join discuss or in communicate any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) confidential information with respect to the Company involving and its business, including but not limited to information related to the evaluation of any of strategic alternatives under consideration by the actions items described under clauses (a) through (f) hereof;Board; and
(hviii) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause or induce others to take any action inconsistent with any of the foregoing provisions of this Section 10.1foregoing.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) The Arbor Group hereby waives any right (whether by statute or agreement) to inspect records and lists of Company stockholders (including any list of non-objecting beneficial owners) in connection with the execution by 2008 Annual Meeting, including the rights Arbor has pursuant to that certain agreement dated March 12, 2008, between Arbor and the Company, that requires the Company of a definitive agreement which if consummated will result in a Change of Control, to produce or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlprovide access to certain stockholder records.
Appears in 1 contract
Standstill. 10.1. From You and after the Closing▇▇▇▇▇ ▇▇▇▇▇▇▇ Commodities Affiliates and your and their respective members, without the prior consent of the Boardmanagers, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Powerdirectors, officers and (y) a Pending COC Event, the Investor employees shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) for a period of 15 months after the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfdate of this Agreement, directly or indirectly:
(a) by purchase make any statement or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except proposal to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction board of the Common Stock following the conclusion directors of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, to any of its Subsidiaries our Representatives or assets to any of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiariesour stockholders with respect to, or make any public announcement, proposal or offer (iii) including any “solicitation” of “proxies” (as such terms are defined or used in the proxy rules Regulation 14A of the CommissionSecurities Exchange Act of 1934, as amended) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation onotherwise solicit, seek or offer to effect (i) any business combination, merger, tender offer, exchange offer or similar transaction involving the Company, (ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company, (iii) any acquisition of any of our securities or assets, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock rights or options to acquire interests in any voting trust of our securities or subject assets, (iv) any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence the management, Board board of directors or policies of the Company Company, or its Subsidiaries(v) any request or proposal to waive, terminate or amend the provisions of this Agreement;
(gb) forminstigate, join encourage or in assist any way participate in third party (including forming a “group” (within the meaning of Section 13(dwith any such third party) of the Exchange Act) with respect to the Company involving do any of the actions items described under clauses set forth in clause (a) through (f) hereofabove;
(hc) knowingly take any action which would or would reasonably be expected to result in require the Company having to make a public announcement regarding any of the actions described under clauses set forth in clause (a) through (f) hereofabove; or
(id) otherwise take acquire, own or cause sell (or seek permission to acquire, own or sell), of record or beneficially, by purchase, sale or otherwise, any action inconsistent with securities, properties or indebtedness of the Company (except that you may purchase for investment in market transactions up to 1% of our outstanding common stock); in each case unless and until you have received the prior written invitation or approval of our board of directors to do any of the foregoing. The foregoing provisions shall not apply to your Representatives or those of this Section 10.1.
10.2▇▇▇▇▇ ▇▇▇▇▇▇▇ Commodities Affiliates effecting or recommending transactions in securities in the ordinary course of their business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, foregoing (i) acquiring, agreeing to acquire nothing herein shall restrict you or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance ▇▇▇▇▇ ▇▇▇▇▇▇▇ Commodities Affiliates from entering into commercial transactions in the ordinary course of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance business with the Certificate of DesignationsCompany or Company Affiliates (including transactions similar to, (x) pursuant to any dividends or distributions on generally consistent with, transactions previously entered into between such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Companyparties), and (ii) following the conclusion foregoing restrictions shall cease to be of any effect in the period set forth in Section 9, consummating, soliciting, offering, seeking event the Company publicly announces that it has entered into an agreement or discussions with another Person to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors transaction described in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of subpart (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlabove.
Appears in 1 contract
Sources: Confidentiality Agreement
Standstill. 10.1. From and after the Closing(a) Except as otherwise specifically provided in Section 1, without the prior consent each member of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall Stockholder Group will not, and shall will cause each of its directorsAffiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, officersas amended (the "EXCHANGE ACT"), employees, representatives and Affiliates controlled by (but not under common control withas in effect on the date hereof) the Investor and any other Affiliates that have received Company Confidential Information, not to, during the period commencing on its behalfthe date hereof and ending on January 15, 2004 (the "STANDSTILL TERMINATION DATE"), directly or indirectly:, without the written consent of the Company (which may be withheld or delayed by the Company at its sole discretion):
(ai) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of: (A) any Common Stock or direct or indirect rights or to options to acquire (through purchase, exchange, conversion or otherwise) any Common Stock; or (B) any other Voting Securities, or direct or indirect rights to options to acquire (through purchase, exchange, conversion or otherwise) any other Voting Securities; PROVIDED, HOWEVER, that clauses (A) and (B) shall not include Common Stock or other Voting Securities received as a result of a stock dividend, stock distribution or stock split or through the exercise of any rights under any Company rights offering or shareholder rights plan; PROVIDED, FURTHER, HOWEVER, that clause (i) shall not prohibit any open-market purchase of Common Stock only if, after giving effect to any such purchase, the Stockholder Group does not beneficially own in excess of 15% of the Common Stock;
(bii) enter into a short of, solicit proxies (or trade in, derivative securities representing the right to vote written consents) or economic benefits of Voting Stock assist or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toparticipate in any other way, directly or indirectly, engage in any solicitation of proxies (or written consents), or otherwise become a "participant" in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “"solicitation” of “proxies” " (as such terms are used defined in the proxy rules Instruction 3 of the Commission) or written consents with respect to any Voting Stock Item 4 of the Company;
(d) initiateSchedule 14A and Rule 14a-1 of Regulation 14A, make or submit any stockholder proposalrespectively, whether made pursuant to Rule 14a-8 under the Exchange Act Act) in opposition to the recommendation or otherwise, or, except as expressly contemplated by this Agreement or proposal of the Certificate of Designations, otherwise seek the election or appointment toBoard, or representation onrecommend or request or induce or attempt to induce any other individual or entity (each, a "PERSON") to take any such actions, or the nomination of seek to advise, encourage or influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement other person with respect to the voting of (or the execution of a written consent in respect of) the Common Stock or other Voting Securities, or execute any written consent in lieu of a meeting of the holders of the Common Stock or other Voting Stock that is inconsistent Securities or grant a proxy with respect to the voting obligations of the Investor hereunderCommon Stock or other Voting Securities to any person other than to the Board or persons appointed as proxies by the Board;
(fiii) except as expressly contemplated by this Agreement initiate, propose or the Certificate of Designations, otherwise act, alone submit one or in concert with others, more stockholder proposals or induce or attempt to seek representation on or induce any other person to control or influence the management, Board or policies of the Company or its Subsidiariesinitiate any stockholder proposal;
(giv) call or request, seek to call or request the call of, a special meeting of the Company's stockholders, or make a request for a list of the Company's stockholders;
(v) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d13(d)(3) of the Exchange Act) for the purpose of acquiring holding, voting or disposing of any securities of the Company other than the Stockholder Group;
(vi) vote for any nominee or nominees for election to the Board, other than those nominated or supported by the Board;
(vii) seek, alone or in concert with others, to place a representative or other affiliate or nominee on the Board or seek the removal of any member of the Board or a change in the size or composition of the Board;
(viii) deposit any Common Stock or other Voting Securities in a voting trust or enter into any other arrangement or agreement with respect to the Company involving voting thereof; PROVIDED, HOWEVER, that the foregoing shall not prohibit Broken Arrow's investment committee from taking any action that is not otherwise inconsistent with this Agreement;
(ix) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any of the actions items described under clauses (a) through (f) hereofassets or business of the Company or any rights or options to acquire any such assets or business from any person;
(hx) knowingly seek, propose, or make any statement with respect to, or solicit, negotiate with, or provide any information to any person with respect to, a merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company;
(xi) take any action, alone or in concert with any other person, advise, finance, assist or participate in or encourage any person to take any action which would is prohibited to be taken by any Investor or would any of its affiliates or associates pursuant to this Agreement, or make any investment in or enter into any arrangement with, any other person that engages, or offers or proposes to engage in any of the foregoing;
(xii) disclose publicly, or privately in a manner that could reasonably be expected to result in become public, any intention, plan or arrangement inconsistent with the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofforegoing; or
(ixiii) otherwise take or cause any action inconsistent with challenging the validity or enforceability of any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding 2.2; PROVIDED, HOWEVER, that the provisions foregoing shall not prohibit: (x) the Offeror (as defined below) from presenting to the Board Qualified Proposals (as defined below); or (y) the Offeror from conducting non-hostile discussions with officers of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary advisors to maintain the Total Voting Power of the Company that are incidental to the Investor Parties Beneficially Owned immediately prior development of any Qualified Proposal. The Company shall cause any such Qualified Proposals to be presented to the Board (or a committee thereof) and shall permit any such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1discussions to occur, (I) but nothing in this Agreement shall prohibit impose upon the Board or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned any obligation to act (or not to act) other than as required by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processapplicable Delaware law.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Standstill. 10.1. From and after Until a Purchaser, together with its Affiliates, ceases to Beneficially Own greater than 5% of the Closingthen outstanding Common Stock (determined on a fully diluted, as-converted basis), each of such Purchaser’s Purchaser Parties shall not, without the prior consent approval of the Board, the Investor hereby agrees that until such time as the earlier to occur Board of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalfDirectors, directly or indirectly, through its Subsidiaries or any other Persons, or in concert with any Person, or as a “group” (as defined in Section 13 of the Exchange Act) with any Person:
(a) by purchase, offer to purchase, or agree to purchase or otherwiseotherwise acquire Beneficial Ownership of any Common Stock, acquireor any securities convertible or exchangeable into Common Stock, agree to acquire or offer to acquire Voting excluding any shares of Class A Common Stock or direct other securities acquired pursuant to a conversion of the Preferred Stock, or indirect rights or options otherwise acquired pursuant to acquire Voting Stockthe Transaction Documents;
(b) enter into a short make, or in any way participate in, any solicitation of proxies to vote, or seek to advise or influence any Person with respect to the voting of, or trade in, derivative any voting securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion Company or any of the period set forth in Section 9Company Subsidiaries, or seek or propose to influence, advise, change or control the Board of Directors, management, policies, affairs or strategy of the Company by way of any public communication or other communications to security holders intended for such purpose;
(c) make a proposal for, or offer of (with or without conditions) any acquisition of or extraordinary transaction involving the Company or any of the Company’s Subsidiaries or any of their respective securities or assets;
(d) effect or seekseek 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 announce any intention to effect or cause or participate in in, or in any way knowingly assist, assist or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly public or otherwise) to effect or participate in, (i) any acquisition except as a holder of any Voting Class A Common Stock or rights or options to acquire any Voting Preferred Stock) in a merger, (ii) any tender consolidation, division, acquisition or exchange offerof substantially all assets or equity, merger change of control transaction, recapitalization, restructuring, liquidation or other business combination similar transaction involving the Company, Company or any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, ; or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit enter into any Voting Stock discussions, negotiations, arrangements or understandings with or form a group with, any third party in connection with such third party’s taking, planning to take, or seeking to take any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
actions prohibited by clauses (fa) except as expressly contemplated by through (d) of this Agreement Section 5.1 or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of Directors or the management or policies of the Company, including the Company or its Subsidiaries;
(g) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate nothing in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board 5.1 will limit (i) publicly recommends that the stockholders tender their shares any Purchaser Party’s ability to any Person who has publicly announced a tender vote or exchange offer which, if consummated, would result in a Change of Control, Transfer (subject to Section 4.2) its Class A Common Stock or Preferred Stock or otherwise exercise rights under its Preferred Stock; (ii) fails the ability of any director elected by the holders of Preferred Stock pursuant to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement the Certificate to vote or otherwise fails to make exercise its fiduciary duties as a “stop-look-and-listen” communication member of the Board of Directors; (iii) the ability of any director elected by the holders of Preferred Stock pursuant to the stockholders Certificate to seek to participate fully as a director on the Board of the Company within such time period, Directors; or (biv) the execution by the Company ability of a definitive agreement which if consummated will result in a Change Purchaser or the holders of Control, or (c) Preferred Stock to exercise their rights to elect directors pursuant to the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlCertificate.
Appears in 1 contract
Sources: Securities Purchase Agreement (Earthstone Energy Inc)
Standstill. 10.1. From Beginning on the date of this letter agreement and ---------- continuing for a period of one (1) year after the Closingdate of a notice of termination of discussions under Section (8) below, without the prior consent of the Boardeach party and its officers, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, subsidiaries and persons in control of such party will not (and each party and its officers, employeesdirectors, representatives subsidiaries and Affiliates controlled by (but persons in control of such party will not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not assist or encourage others to, on its behalf), directly or indirectly, unless specifically requested to do so in writing in advance by the other party's Board of Directors:
(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock any voting securities or direct or indirect rights or options to acquire Voting Stockany voting securities of the other party or any subsidiary thereof, or of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person;
(b) enter into a short ofmake, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toin any way participate, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, "solicitation" or knowingly facilitate any other Person "proxies" to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” vote (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
Securities and Exchange Commission (d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to"SEC")), or representation on, seek to advise or the nomination of influence any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust person or subject any Voting Stock to any arrangement or agreement entity with respect to the voting of any Voting Stock that is inconsistent with the voting obligations securities of the Investor hereunderother party;
(fc) except as expressly contemplated by this Agreement make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Certificate other party or any of Designations, otherwise act, alone its securities or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiariesassets;
(gd) form, join or in any way participate in a “"group” (within the meaning of " as defined in Section 13(d13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act) "), in connection with respect to the Company involving any of the actions items foregoing;
(e) otherwise act or seek to control or influence the management, Board of Directors or policies of the other party; or
(f) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described under in clauses (a) through (fe) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take or cause any action inconsistent with any of the foregoing provisions of this Section 10.1above.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Sources: Confidentiality Agreement (Electronics for Imaging Inc)
Standstill. 10.1. From and after the Closing, without date of this Agreement until the prior consent of the Board, the Investor hereby agrees that Expiration Date or until such earlier time as the earlier restrictions in this paragraph 13 terminate pursuant to occur the terms of this Agreement (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Eventsuch period, the “Restricted Period”), Investor shall not, and shall cause its directorsAffiliates and Associates under its control or direction (collectively, officers, employees, representatives and Affiliates controlled by (but the “Restricted Persons”) not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, absent prior express written invitation or authorization by the Board:
a) engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” (as such term is defined under the Securities Exchange Act of 1934, as amended and the rules promulgated thereunder (the “proxiesExchange Act”)) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such terms are used term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the proxy rules Exchange Act) in any such solicitation of proxies or consents;
b) knowingly encourage, advise or influence any other Person or knowingly assist any Person in so encouraging, advising or influencing any Person with respect to the giving or withholding of any proxy, consent or other authority to vote (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter);
c) form, join or act in concert with any partnership, limited partnership, syndicate or other group, including a “group” as defined pursuant to Section 13(d) of the Commission) Exchange Act and the rules promulgated thereunder with any entity or written consents person unaffiliated with Investor and with respect to any Voting Stock Securities; EXECUTION VERSION
d) make or in any way participate, directly or indirectly, in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, sale of a division, sale of substantially all assets, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries or its or their securities or assets (each, an “Extraordinary Transaction”) (it being understood that the foregoing shall not restrict Investor from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board); or make, directly or indirectly, any proposal, either alone or in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement regarding any of the types of matters set forth above in this paragraph;
(di) initiateseek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as otherwise permitted in this Agreement, or (ii) seek, alone or in concert with others, the removal of any member of the Board, provided, however, that nothing in this Agreement shall prevent Investor or its Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection with the 2019 Annual Meeting so long as such actions do not create a public disclosure obligation for Investor or the Company and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Investor’s normal practices in similar circumstances;
f) make or submit be the proponent of any stockholder proposal, whether made proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board);
(eg) deposit make any Voting Stock in request for stock list materials or other books and records of the Company under the Maryland General Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
h) make any voting trust or subject any Voting Stock to any arrangement or agreement public proposal with respect to (i) any change in the voting number or term of directors or the filling of any Voting Stock that is inconsistent with vacancies on the voting obligations Board, (ii) any material change in the capitalization of the Investor hereunder;
Company, (fiii) except as expressly contemplated by this Agreement any other material change in the Company’s management, business or corporate structure, or (iv) any waiver, amendment or modification to the Company’s Certificate of DesignationsIncorporation or bylaws, otherwise act, alone or in concert with others, to seek representation on other actions which may affect or to impede the acquisition of control or influence the management, Board or policies of the Company or its Subsidiariesby any person;
(gi) formenter into any negotiations, join agreements or in understandings with any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect Third Party to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action that Investor is prohibited from taking pursuant to this paragraph 13; or
j) make any public request or submit any public proposal, directly or indirectly, to amend or waive the terms of this Agreement, in each case which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of such request or proposal; EXECUTION VERSION provided, that the actions described under clauses (a) through (f) hereof; or
restrictions in this paragraph 13 shall terminate automatically upon the earliest of (i) otherwise take or cause as a non-exclusive remedy for any action inconsistent with any of the foregoing provisions material breach of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned Agreement by the Investor and its Affiliates Company (togetherincluding, the “Investor Parties”) decreases as without limitation, a result of an Excluded Issuance, failure to appoint the Investor Parties may acquire in Nominee or Additional New Director and otherwise constitute the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares Board in accordance with paragraph 1, a failure to appoint a replacement in accordance with paragraph 6, or a failure to issue the Certificate Company Press Release in accordance with paragraph 11), upon ten (10) business days’ prior written notice by Investor following any such material breach of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, this Agreement by the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period Company if such purchase would result breach has not been cured within such notice period, provided that Investor is not in material breach of this Agreement at the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company)time such notice is given, (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will with respect to any Extraordinary Transaction that would directly or indirectly result in a Change the acquisition of Controlbeneficial ownership by any person or group of more than 50% of the Voting Securities or all or substantially all of the Company’s assets, or and (ciii) the public announcement commencement of any tender or exchange offer (by the Company that it recommends any transaction thata person other than Investor or its Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would directly or indirectly result in the acquisition of beneficial ownership by any person or group of more than 50% of the Voting Securities, where the Company files a Change Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer. During the Restricted Period, the Company shall not adopt and shall not propose the adoption of Control.any amendment to the Certificate of Incorporation or bylaws of the Company that would reasonably be expected to impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future Company Annual Meeting of Stockholders, and nothing contained in this paragraph 13 shall prevent Investor from (i) privately communicating with the Company or the Board, (ii) making any public or private statement or announcement with respect to an Extraordinary Transaction that is publicly announced by the Company or a Third Party, and (iii) publicly commenting on any earnings announcement of the Company so long as any such communication is non-disparaging and otherwise not in violation of any of the provisions in this paragraph 13. Nothing in this Agreement shall prevent the Company from responding to such Investor statements, subject to the obligations of the Parties under paragraph 14, or the Company or Investor from responding to any factual statement as required by applicable legal process, subpoena, or legal requirement or as part of a response to a request for information from any governmental authority with jurisdiction over the Party from whom information is sought (so long as such request did not arise as a result of discretionary acts by Investor or any of its Affiliates or by the Company or any of its Affiliates, as applicable). Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 13 shall prohibit or restrict the Investor Nominee or the Additional New Director from exercising his or her rights and fiduciary duties as a director of the Company or restrict his or her discussions solely among other members of the Board and/or management, advisors, representatives or agents of the Company. EXECUTION VERSION
Appears in 1 contract
Sources: Cooperation Agreement
Standstill. 10.1. From and after Each of the Sellers agrees that, for a period of three years from the date of the Initial Closing, without unless specifically invited in writing by the prior consent Buyer, neither any Seller any of the Boardtheir respective affiliates (including Perry Corp. and ▇▇▇▇▇▇▇ ▇▇▇▇▇), the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, or their respective officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and directors or partners, will in any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor tomanner, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(ca) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate assist any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any direct or indirect acquisition of any Voting Stock securities (or rights beneficial ownership thereof) or options assets of the Buyer or any of its affiliates, other than the acquisition of up to acquire any Voting Stock, an aggregate of two percent (2%) of the outstanding common shares of the Buyer solely for passive investment purposes; (ii) any tender or exchange offer, merger or other business combination involving the Company, Buyer or any of its Subsidiaries affiliates; (iii) any recapitalization, restructuring, liquidation, dissolution or assets any other extraordinary transaction with respect to the Buyer or any of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, affiliates; or (iiiiv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or written consents with respect to vote any Voting Stock voting securities of the Company;
Buyer or any of its affiliates; (d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gb) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving Buyer or any of the actions items described under clauses its affiliates; (ac) through (f) hereof;
(h) knowingly take any action which would that might force the Buyer or would reasonably be expected to result in the Company having any of its affiliates to make a public announcement regarding any of the actions described under clauses types of matters set forth in (a) through above; or (fd) hereof; or
(i) otherwise take enter into any discussions or cause arrangements with any action inconsistent person with respect to any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1foregoing, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company provided that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (forgoing shall not prevent the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited Sellers from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender tendering their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to participating in any extraordinary transaction proposed by any third party other than the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlSellers.
Appears in 1 contract
Sources: Stock Purchase Agreement (Universal American Corp.)
Standstill. 10.1. From and after During the ClosingRestricted Period, without the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall Legion will not, and shall will cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, Restricted Persons not to, on its behalfin any way, directly or indirectly:indirectly (in each case, except as expressly permitted by this Agreement):
(a) by purchase with respect to Company or otherwise, acquire, agree to acquire or offer to acquire the Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inSecurities, (i) any acquisition of any Voting Stock make, participate in or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) encourage any “solicitation” of “proxies” (as such terms are term is used in the proxy rules of the CommissionSEC, including any solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”)) of proxies or written consents with respect to the election or removal of directors or any Voting Stock other matter or proposal; (ii) become a “participant” (as such term is used in the proxy rules of the CompanySEC) in any such solicitation of proxies or consents; (iii) seek to advise, encourage or influence any Person, or assist any Person in so encouraging, advising or influencing any Person, with respect to the giving or withholding of any proxy, consent or other authority to vote or act (other than such encouragement, advice or influence that is consistent with the Board’s recommendation in connection with such matter, if applicable); or (iv) initiate, encourage or participate, directly or indirectly, in any “vote no,” “withhold” or similar campaign;
(db) initiate, make propose or submit otherwise “solicit” (as such term is used in the proxy rules of the SEC, including any stockholder solicitations of the type contemplated by Rule 14a-2(b) promulgated under the Exchange Act) any stockholders of Company for the approval of any shareholder proposal, whether made pursuant to Rule 14a-4 or Rule 14a-8 promulgated under the Exchange Act Act, or otherwise, or, except as expressly contemplated by this Agreement or cause or encourage any Person to initiate or submit any such shareholder proposal;
(c) with respect to Company or the Certificate Voting Securities, (i) communicate with Company’s stockholders or others pursuant to Rule 14a-1(l)(2)(iv) promulgated under the Exchange Act; (ii) participate in, or take any action pursuant to, or encourage any Person to take any action pursuant to, any type of Designations“proxy access”; or (iii) conduct any nonbinding referendum or hold a “stockholder forum”;
(i) seek, otherwise seek the alone or in concert with others, election or appointment to, or representation on, the Board; (ii) nominate or propose the nomination of, or recommend the nomination of, or encourage any Person to nominate or propose the nomination of or recommend the nomination of, any candidate to, to the Board;
; or (eiii) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise actseek, alone or in concert with others, or encourage any Person to seek representation on or to control or influence seek, the management, Board or policies removal of any member of the Company or its SubsidiariesBoard;
(ge) with respect to Company, (i) call or seek to call a special meeting of stockholders, or encourage any Person to call a special meeting of stockholders; (ii) act or seek to act by written consent of stockholders; or (iii) make a request for any stockholder list or other records;
(f) other than solely with other Restricted Persons with respect to Voting Securities now or subsequently owned by them, (i) form, join (whether or not in any way writing), encourage, influence, advise or participate in a partnership, limited partnership, syndicate or other group, including a “group” (within the meaning of as defined pursuant to Section 13(d) of the Exchange Act, with respect to any Voting Securities; (ii) deposit any Voting Securities into a voting trust, arrangement or agreement; or (iii) subject any Voting Securities to any voting trust, arrangement or agreement (other than granting proxies in solicitations approved by the Board);
(i) make any offer or proposal (with or without conditions) with respect to any tender offer, exchange offer, merger, amalgamation, consolidation, acquisition, business combination, recapitalization, consolidation, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company involving acquisition by any Third Party (as defined below) of more than 50 percent of Company’s common stock or all or substantially all of Company’s assets (each, an “Extraordinary Transaction”) and any Restricted Person; (ii) solicit any Person not a party to this Agreement (a “Third Party”) to, on an unsolicited basis, make an offer or proposal (with or without conditions) with respect to any Extraordinary Transaction, or encourage, initiate or support any Third Party in making such an offer or proposal; (iii) participate in any way in, either alone or in concert with others, any Extraordinary Transaction; or (iv) except with respect to any Extraordinary Transaction that has not been approved by the Legion Designee in such person’s capacity as a member of the actions items described under clauses Board, publicly comment on any Extraordinary Transaction or proposal regarding any Extraordinary Transaction (ait being understood that this clause (g) through (f) hereofwill not restrict any Restricted Person from tendering shares, receiving payment for shares or otherwise participating in any such Extraordinary Transaction on the same basis as other stockholders of Company);
(h) knowingly institute, solicit, encourage, threaten, assist or join, as a party, any litigation, arbitration or other proceeding against or involving Company, its Affiliates or any of their respective current or former directors or officers (including derivative actions), except that this clause (h) will not prevent any Restricted Person from (i) bringing litigation primarily to enforce the provisions of this Agreement instituted in accordance with this Agreement; (ii) making counterclaims with respect to any proceeding initiated by, or on behalf of, Company or its Affiliates against a Restricted Person; (iii) bringing bona fide commercial disputes that do not in any manner relate to the subject matter of this Agreement; (iv) exercising statutory appraisal rights; (v) responding to or complying with a validly issued legal process; or (vi) bringing litigation against any such person in the case of fraud by such person;
(i) take any action which in support of, or make any proposal or request that constitutes: (i) controlling, changing or influencing the Board or management of Company, including any plans or proposals to change the number or term of directors or to fill any vacancies on the Board; (ii) controlling, changing or influencing the capitalization, stock repurchase programs and practices, capital allocation programs and practices, or dividend policy of Company; (iii) controlling, changing or influencing Company’s management, business or corporate structure; (iv) seeking to have Company waive or make amendments or modifications to its certificate of incorporation or bylaws; (v) causing a class of securities of Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange; or (vi) causing a class of securities of Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(j) other than through non-public communications with Company that would or would not reasonably be expected to result in the Company having or involve public disclosure obligations for any Party, make any request or submit any proposal to make a public announcement regarding any of the actions described under clauses (a) through (f) hereof; or
(i) otherwise take amend or cause any action inconsistent with any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with waive the terms of this Agreement;
(i) compensate or enter into any agreement, arrangement or understanding, whether written or oral, to compensate any person for his or her service as a director of Company with any cash, securities (including any rights or options convertible into or exercisable for or exchangeable into securities or any profit sharing agreement or arrangement) or other form of compensation directly or indirectly related to Company or its securities; or (ii) have any other agreement, arrangement or understanding, whether written or oral, with any person related to his or her service as a director of Company, except for customary indemnification obligations to the Legion Designee in their capacity as an employee of a member of the Legion Group as disclosed in writing to Company prior to the date of this Agreement;
(l) other than with other Restricted Persons, enter into any negotiations, agreements (whether written or oral), arrangements or understandings with, or advise, finance, assist or encourage, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Agreement;
(ivm) acquire, offer, agree or propose to acquire, 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 a “group” as defined pursuant to Section 13(d) of the Exchange Act), through swap or hedging transactions, or otherwise, or direct any Third Party in the acquisition of, any securities of Company or any rights decoupled from exercising its the underlying securities of Company that would result in the Legion Group beneficially owning, more than 9.9 percent of the then-outstanding Voting Securities (including, for purpose of this calculation, all Voting Securities that such member of the Legion Group has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional and including economic ownership pursuant to a cash settled call option or other derivative security, contract or instrument primarily related to the Preferred Directors in price of Voting Securities); or
(n) other than through open market sale transactions where the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors identity of the Company; and (II) if the Board determines purchaser is not known or in underwritten widely dispersed public offerings, sell, offer or agree to engage in a process that could give rise to a Change of Controlsell, through swap or hedging transactions or otherwise, the securities of Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available any Third Party that, to the other participants knowledge of any Legion Signatory (after due inquiry in connection with a private, non-open market transaction, it being understood that such process; provided, however, that if the Investor elects knowledge will be deemed to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares exist with respect to any Person who has publicly announced a tender or exchange offer whichavailable information, if consummatedincluding information in documents filed with the SEC), would result in such Third Party, together with its Affiliates and Associates, owning, controlling or otherwise having any beneficial ownership of more than 4.9 percent of the then-outstanding Voting Securities or that would increase the beneficial ownership of any Third Party who, together with its Affiliates and Associates, has beneficial ownership of more than 4.9 percent of the then-outstanding Voting Securities (it being understood that the restrictions in this clause (n) will not apply to any Third Party that is a Change Schedule 13G filer and is a mutual fund, pension fund, index fund or investment fund manager with no known history of Controlactivism or known plans to engage in activism). Notwithstanding anything set forth in this Agreement to the contrary, nothing in this Agreement will be deemed to prevent any member of the Legion Group from (i) communicating privately with the Board or Company’s chief executive officer or chief financial officer regarding any matter, so long as such communications are not intended to, and would not reasonably be expected to, require Company or any member of the Legion Group to make public disclosure with respect thereto; (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the communicating privately with stockholders of Company, but only so long as such communications do not violate any provision of this Agreement; (iii) identifying potential director candidates to serve on the Company within Board or retaining advisors, including public relations or proxy solicitation firms, so long as such time periodactions do not create a public disclosure obligation for the Legion Group or Company, are not publicly disclosed by the Legion Group or its Affiliates and are undertaken on a basis reasonably designed to be confidential; (iv) making or sending private communications to investors in any member of the Legion Group or any of their Affiliates or prospective investors in any member of the Legion Group or any of their Affiliates, but only if such communications are (1) not made with an intent to circumvent or violate any of the restrictions set forth in paragraph 11, (b2) the execution based on publicly available information and (3) not reasonably expected to be publicly disclosed and are understood by the Company of a definitive agreement which if consummated will result in a Change of Control, all parties to be confidential communications; or (cv) the public announcement making any statement in response to any oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or similar processes in connection with any lawsuit, action, suit, claim or other proceeding before any court or that Legion reasonably believes, after consultation with outside counsel, to be legally required by the Company that it recommends any transaction that, if consummated, would result in a Change of Controlapplicable law.
Appears in 1 contract
Sources: Board Representation Agreement (Momentive Global Inc.)
Standstill. 10.1. From The Investor Parties agree that until the later of (i) the three (3) year anniversary of the Initial Closing Date (the “Standstill Expiration Date”) and after (ii) the Closingoccurrence of the Fall-Away of Investor Observer Rights, without the prior consent written approval of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall Parties will not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor to, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;and will cause their Affiliates not to:
(ca) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, facilitate or knowingly facilitate encourage any other Person person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of (or obtaining any Voting Stock right to direct the voting or disposition of) any securities (including any derivative securities), or rights or options to acquire (or obtain any Voting Stockright to direct the voting or disposition of) any securities, or any assets, indebtedness or businesses of the Company, in each case, whether or not any of the foregoing may be acquired or obtained immediately or only after the passage of time or upon the satisfaction of one or more conditions (whether or not within the Investor’s control) pursuant to any agreement, arrangement or understanding or otherwise, (ii) any tender or exchange offer, merger consolidation, business combination, acquisition, merger, amalgamation, joint venture, partnership or other business combination similar transaction involving the Company or any of the assets of the Company, (iii) any of its Subsidiaries recapitalization, restructuring, liquidation, dissolution or assets of other extraordinary transaction with respect to the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its SubsidiariesCompany, or (iiiiv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the CommissionSEC) to vote any voting securities of the Company or written consents consent to any action from any holder of any voting securities of the Company or seek to advise or influence any person with respect to the voting of or the granting of any consent with respect to any Voting Stock voting securities of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gb) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of as defined under the Exchange Act) in connection with the voting securities of the Company or otherwise act in concert with any person in respect of any such securities;
(c) otherwise act, alone or in concert with others, to seek to advise, control or influence the management, Board or policies of the Company or to seek to obtain representation on the Board;
(d) make any public statement with respect to the Company involving any restrictions of the actions items described under clauses (a) through (f) hereof;
(h) knowingly this Section 5.07, or take any action which would or would reasonably be expected to result in require that the Company having to make a public announcement regarding any the possibility of the actions described under clauses (a) through (f) hereofa strategic business and/or investment opportunity; or
(ie) otherwise take advise, assist, encourage or cause direct any action inconsistent with Person to do, or to advise, assist, encourage or direct any other Person to do, any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such processforegoing; provided, however, that if nothing in this Section 5.07 will limit the Investor elects Parties’ ability to participate Transfer (subject to Section 5.08) or convert shares of Series A Preferred Stock into Common Stock (subject to applicable provisions in such processthe Certificate of Designations), make any transfer pursuant to a Permitted Loan or any foreclosure thereunder or transfer in lieu of a foreclosure thereunder, or the Preferred Directors shall recuse themselves from any further Board discussions relating Investor Parties’ ability to such process.
10.4. For purposes confidentially request a waiver of the provisions of this Section 105.07 to privately make and submit to the chief executive officer of the Company any friendly offer or proposal that is intended by the Investor Parties to be made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expected to require public disclosure by any Person), a “Pending COC Event” meansparticipate in rights offerings made by the Company to all holders of its Common Stock, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares receive any dividends or similar distributions with respect to any Person who has publicly announced a securities of the Company held by the Investor Parties, tender shares of Common Stock or Series A Preferred Stock into any tender or exchange offer which(subject to Section 5.08), if consummated, would result in a Change effect an adjustment to the Conversion Rate pursuant to the Certificate of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement Designations or otherwise fails to make a “stop-look-and-listen” communication to exercise rights under its Common Stock or Series A Preferred Stock that are not the stockholders subject of this Section 5.07 (in each case, in accordance with the Company within such time period, (b) terms of this Agreement and the execution by the Company Certificate of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of ControlDesignations).
Appears in 1 contract
Standstill. 10.1. From and after In order to induce Hanover to enter into this ---------- Agreement, together with the Closing, without the prior consent of the BoardPurchase Agreement, the Investor hereby OSI Asset Purchase Agreement and the Alliance Agreement, during the period beginning on the date hereof through the Registration Rights Date, each Seller Party agrees that until such time as the earlier to occur neither it nor any of (x) it ceases to Beneficially Own 5% of the Total Voting Powerits Affiliates or any officers, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, advisors, agents or other representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, acting on its behalfbehalf will, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor toin any manner, directly or indirectly, engage in a collared hedging transaction without the prior written consent of the Common Stock following the conclusion of the period set forth in Section 9;Hanover:
(ca) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention agree to effect or cause or participate in in, directly or indirectly, or in any way knowingly assist, or knowingly facilitate assist any other Person person to effect or seekeffect, offer or propose (whether publicly or otherwise) to effect or participate in, in (i) any acquisition acquisition, directly or indirectly, by purchase or otherwise, of any Voting Stock securities (or beneficial ownership thereof), or rights or options to acquire any Voting Stocksecurities, of Hanover or any successor to or person in control of Hanover, pursuant to which, after giving effect to such acquisition, the Seller Parties and their Affiliates would own, directly or indirectly, beneficially or otherwise, greater than twenty-five percent (25%) of the shares of Common Stock then outstanding; and (ii) any tender or exchange offer, merger merger, consolidation or other business combination involving Hanover's securities, pursuant to which, after giving effect to such transaction, the CompanySeller Parties and their Affiliates would own, any of its Subsidiaries directly or assets indirectly, beneficially or otherwise, greater than twenty-five percent (25%) of the Company or its Subsidiaries constituting a significant portion shares of Common Stock then outstanding (or, if applicable, greater than twenty-five percent (25%) of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents outstanding voting stock with respect to any Voting Stock of the Companysuccessor entity to Hanover);
(db) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment public announcement with respect to, or representation onsubmit a proposal for, or offer of (with or without conditions), any extraordinary transaction involving Hanover or any of its securities or relating to any of the nomination of any candidate to, the Boardmatters set forth in clause (a) above;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;
(gc) form, join or in any way participate in a “"group” " (within the meaning of Section 13(d) of as defined in the Exchange Act) with respect to the Company involving any of the actions items described under clauses matters set forth in clause (a) through (f) hereof;
(h) knowingly take any action which would or would reasonably be expected to result in the Company having to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofabove; or
(id) otherwise take enter into any discussions or cause arrangements with any action inconsistent third party with respect to any of the foregoing provisions of this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period matters set forth in Section 9clause (a) above or advise, consummatingassist, solicitingencourage, offering, seeking finance or seek to effect and negotiating with persuade others to take any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention action with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processforegoing.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Sources: Lock Up, Standstill and Registration Rights Agreement (Hanover Compressor Co /)
Standstill. 10.1. From During the Cooperation Period, each Barington Party will not, and after will cause its and their Affiliates and its and their respective Representatives acting on their behalf (collectively with the ClosingBarington Parties, the “Restricted Persons”) to not, directly or indirectly, without the prior written consent or authorization of the Company or the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(ai) (A) acquire, offer or propose to acquire, solicit an offer to acquire, or agree to acquire, by purchase or otherwise, acquirealone or in concert with any Third Party, agree to acquire or offer to acquire (x) any Voting Stock or Securities, (y) any other direct or indirect rights interest in any securities of the Company or any direct or indirect rights, warrants or options to acquire Voting Stock;
acquire, or securities convertible into or exchangeable for, any securities of the Company, or (bz) enter into a short any contracts or rights in any way related to the acquisition or price of securities or interests of the Company (whether beneficially, constructively or synthetically through any derivative or trading position or otherwise), in each case, if such acquisition, offer, agreement or transaction would result in the Barington Parties (together with their Affiliates) having beneficial ownership of, or trade in, derivative securities representing the right to vote or aggregate economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor exposure to, directly or indirectlymore than 5.0%, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
outstanding at such time; (cB) effect or seekacquire, offer or propose to acquire, solicit an offer to acquire, or agree to acquire, by purchase or otherwise, alone or in concert with any Third Party, any material indebtedness of the Company; (whether publicly C) sell, transfer, assign, pledge, encumber, hypothecate or otherwise dispose of or transfer, either voluntarily or involuntarily (by the operation of law or otherwise), or enter into any contract, option or other arrangement, agreement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or other disposition or transfer (by the operation of law or otherwise) (“Transfer”) to a Designated Person (x) any Voting Securities, (y) any other direct or indirect interest in any securities of the Company or any direct or indirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any securities of the Company, or (z) any contracts or rights in any way related to the acquisition or price of securities or interests of the Company; or (D) effect or seek to effect, offer or announce any intention propose to effect or effect, cause or participate in in, or in any way knowingly assist, facilitate or knowingly facilitate encourage any other Person Third Party to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate inin an Extraordinary Transaction (it being understood that the foregoing shall not restrict the Restricted Persons from tendering shares, (i) receiving consideration or other payment for shares, or otherwise participating in any acquisition Extraordinary Transaction on the same basis as other stockholders of the Company, or from directing any Voting Stock or rights or options unsolicited contact from a Third Party which may contemplate such an Extraordinary Transaction to acquire any Voting Stock, representatives of the Board);
(ii) any tender (A) call or exchange offerseek to call (publicly or otherwise), merger alone or other business combination involving the Companyin concert with others, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock meeting of the Company;
’s stockholders or act or seek to act by written consent in lieu of a meeting (d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate setting of Designationsa record date therefor), otherwise seek the (B) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as expressly set forth in Section 1, (C) make or be the proponent of any stockholder proposal to the Company or the nomination Board or any committee thereof, (D) seek, alone or in concert with others (including through any “withhold” or similar campaign), the removal of any candidate to, member of the BoardBoard or (E) conduct a referendum of stockholders of the Company;
(eiii) deposit make any Voting Stock in request for stock list materials or other books and records of the Company or any voting trust or subject any Voting Stock to any arrangement or agreement with respect of its subsidiaries pursuant to the voting of any Voting Stock that is inconsistent with the voting obligations laws of the Investor hereunderState of Maryland or any other statutory or regulatory provisions providing for stockholder access to books and records, except, for the avoidance of doubt, in connection with any matter as to which any litigation, arbitration or other proceeding would be permitted pursuant to Section 2(c)(xi);
(fiv) except as expressly contemplated by this Agreement make, or the Certificate of Designationsin any way participate in, otherwise actdirectly or indirectly, alone or in concert with others, any “solicitation” (as such term is used in the proxy rules promulgated under the Exchange Act) of proxies or consents or seek to seek representation on or to control advise or influence in any manner whatsoever any person with respect to the management, Board election or policies removal of directors of the Company or its Subsidiariesany 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 Exchange Act) in any such solicitation of proxies or consents;
(gA) make any public proposal concerning the Company or aimed at influencing the management or direction of the Company, including, without limitation, any change in the number or identity of directors of the Company or the filling of any vacancies or newly created directorships on the Board other than as provided under Section 1 of this Agreement, any change in the capitalization, capital allocation policy or dividend policy of the Company, any other change to the Board or the Company’s management, or corporate or governance structure or policy, any waiver, amendment or modification to the Charter or the Bylaws or any Company Policies or (B) make any public statement (or knowingly encourage any Third Party to make a public statement) regarding an Extraordinary Transaction;
(vi) knowingly encourage or advise any Third Party or knowingly assist any Third Party in encouraging or advising any other person with respect to (A) the giving or withholding of any proxy relating to, or other authority to vote, any Voting Securities, or (B) conducting any type of referendum relating to the Company, other than such encouragement or advice that is consistent with the Board’s recommendation in connection with such matter, or as otherwise specifically permitted under this Agreement;
(vii) form, join or act in concert with any way participate in a “group” (within the meaning of as defined in Section 13(d13(d)(3) of the Exchange Act, with respect to any Voting Securities, other than a group consisting solely of Barington Parties; provided, however, that an Affiliate of a Barington Party will only be permitted to join the “group” following the execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(viii) enter into a voting trust, arrangement or agreement with respect to any Voting Securities, or subject any Voting Securities to any voting trust, arrangement or agreement (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case other than (A) this Agreement (B) solely with Affiliates of the Barington Parties or (C) granting proxies in solicitations approved by the Board;
(ix) engage in any short sale or any purchase, sale, or grant of any option, warrant, convertible security, share appreciation right, or other similar right (including any put or call option or “swap” transaction) with respect to any security that includes, relates to, or derives any significant part of its value from a decline in the market price or value of the securities of the Company involving any of and would, in the actions items described under clauses (a) through (f) hereofaggregate or individually, result in the Barington Parties ceasing to have a “net long position” in the Company;
(hx) 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 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 shall 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 9, (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 bona fide commercial disputes that do not relate to the subject matter of this Agreement, (D) exercising statutory appraisal rights or similar rights with respect to any Extraordinary Transaction in their respective capacities as stockholders of the Company, or (E) responding to or complying with validly issued legal process;
(xii) enter into any negotiations, agreements, arrangements, or understandings (whether written or oral) with, or knowingly encourage, assist, solicit, or seek to cause, any Third Party to take any action that the Restricted Persons are prohibited from taking pursuant to this Section 2(c);
(xiii) make any request or submit any proposal to amend or waive the terms of this Agreement (including this subclause) or seek a release of the restrictions contained herein (whether by legal action or otherwise), in each case publicly or in a manner which would or would reasonably be expected to result in the Company having to make a public announcement regarding any or disclosure of the actions described under clauses (a) through (f) hereofsuch request or proposal; or
(ixiv) otherwise take enter into any discussion, negotiation, agreement, arrangement or cause any action inconsistent with understanding concerning any of the foregoing provisions of (other than this Agreement) or encourage, assist, solicit, seek or seek to cause any person to undertake any action that the Restricted Persons are prohibited from taking pursuant to this Section 10.1.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”2(c).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Standstill. 10.1. From and after (a) For a period of six (6) years from the Closing, without Closing (the prior consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event“Standstill Period”), the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and shall ensure that none of its Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase or otherwise, acquire, agree to acquire or offer to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock;
(b) enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor Person to, directly or indirectly, engage without the prior consent of a majority of the At-Large Directors who are Independent Directors:
(i) acquire or agree to acquire (whether by purchase, tender or exchange offer, through acquisition of control of another Person, by joining a 13D Group, through the use of a derivative instrument or voting agreement, or otherwise), Beneficial Ownership of any Equity Securities, or any Economic Right or Voting Right to or regarding any Equity Securities, or authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in a collared hedging transaction each case, if the effect of such acquisition would be that the Common Stock following Beneficially Owned in the conclusion aggregate by the Investor and its Affiliates (including, without limitation, any 13D Group of which any Investor or any Affiliate thereof is a member), or with respect to which the period set forth Investor, its Affiliates or any such 13D Group would have Economic Rights or Voting Rights, would exceed the Standstill Limit (it being understood that in the event that there shall be more than one (1) Investor, all shares Beneficially Owned and all Economic Rights and Voting Rights held by all Investors and all other Persons that are participants in any 13D Group of which any Investor is a member shall be aggregated, and deemed Beneficially Owned and held by each Investor, for purposes of this Section 93.2(a)(i));
(cii) (A) make or in any way participate in any “solicitation” of “proxies” (as such terms are used in the rules and regulations of the SEC) with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor or any Affiliate or (y) in accordance with and consistent with the recommendation of the Board);
(iii) deposit any Voting Stock or Series B Shares in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock or Series B Shares to any arrangement or agreement with any Person (other than between the Investor and any of its First Tier Affiliates) with respect to the voting of such Voting Stock or Series B Shares;
(iv) join a 13D Group (other than a group comprising solely of the Investor and its Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock, Series B Shares or Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effecteffect any Change of Control or any acquisition of Equity Securities in excess of the Standstill Limit;
(vi) otherwise act, or announce any intention to effect or cause or participate in alone or in any way knowingly assistconcert with others, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition control of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its Subsidiaries or assets of the Company or its Subsidiaries constituting a significant portion of the consolidated assets of the Company and its Subsidiaries, or (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Commission) or written consents with respect to any Voting Stock of the Company;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any voting trust or subject any Voting Stock to any arrangement or agreement with respect to the voting of any Voting Stock that is inconsistent with the voting obligations of the Investor hereunder;
(f) except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board or policies of the Company or its Subsidiaries;Company; or
(gvii) form, join or in any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly otherwise take any action which that would or would could reasonably be expected to result in compel the Company having to make a public announcement (including any disclosure required to be made in any SEC filing under the rules and regulations of the SEC) regarding any of the actions described matters set forth in this Section 3.2(a). Notwithstanding the foregoing, the restrictions contained in this Section 3.2(a) shall not (A) apply with respect to the election of the Series B Directors by Investor and its Permitted Transferees in accordance with the Certificate of Designation, (B) prevent, restrict, encumber or in any way limit the ability of any Series B Director to vote on matters, make non-public statements to officers, employees, agents, management or other Directors or to take any action or make any statement at any meeting of the Board or any committee or subcommittee thereof in his or her capacity as a Director, (C) apply to or restrict any non-public discussions or other non- public communications between or among directors, members, officers, employees or agents of the Investor or any First Tier Affiliate of the Investor, or (D) restrict any disclosure or statements required to be made by any Series B Director or the Investor under clauses applicable law.
(ab) through If during the Standstill Period the Investor is entitled (fas a result of dilution due to future share issuances by the Company) hereof; orto purchase shares of Common Stock (up to the Standstill Limit) in compliance with this Section 3.2, then unless the Board otherwise approves such purchases shall be made in full compliance with all applicable securities laws, but shall not be made by means of any tender offer.
(c) The restrictions set forth in Section 3.2(a) shall terminate if, at any time during the Standstill Period, (i) otherwise take or cause any action inconsistent with any the Company publicly announces its entry into a definitive agreement, the consummation of which would result in a Change of Control, and such agreement has not been approved by a majority of the foregoing provisions Series B Directors, (ii) the Company shall have waived the terms of its Rights Agreement to permit any Person (other than the Investor or any 13D Group of which the Investor is a member) to effect a Change of Control or otherwise acquire more than fifteen percent (15%) of the outstanding Common Stock, and such transaction has not been approved by a majority of the Series B Directors, or (iii) any Person (other than the Investor or any Affiliate of the Investor or any 13D Group of which the Investor or any Affiliate of the Investor is a member) shall have commenced a bona fide public tender or exchange offer which if consummated would result in a Change of Control, unless the Board recommends against such tender or exchange offer within ten (10) Business Days after the commencement (as such term is defined in Rule 14d-2 under the Exchange Act) thereof and thereafter continues to oppose such tender or exchange offer. If (x) the restrictions set forth in Section 3.2(a) shall have terminated as provided in this Section 10.13.2(c), and (y) any definitive agreement described in clause (i) above, or transaction described in clause (ii) above, or tender or exchange offer described in clause (iii) above, as the case may be, shall have been terminated or abandoned prior to consummation thereof, and (z) any alternative offer or proposal by Investor in response to any such agreement, transaction, tender offer or exchange offer shall also have been abandoned or withdrawn prior to consummation thereof, then the restrictions set forth in Section 3.2(a) shall be reinstated.
10.2. Notwithstanding (d) If during the provisions Standstill Period the Board elects to commence a process intended to lead to a proposal with respect to Change of Section 10.1Control of the Company (whether in response to a proposal from a third party or otherwise), the Company will notify the Investor of the Board’s election and will permit the Investor to participate in such process as a potential bidder, if at the Investor so elects, on the same terms and conditions as third party participants. As a condition to the Investor’s participation in such process, the Board may require that the Investor agree in writing with the Company that if such process results in the Board’s approval of a Change of Control transaction with a Person other than the Investor that is a Superior Proposal as compared to any time bona fide written proposal from the percentage Investor, then the Investor will consent to such transaction, will raise no objection to the consummation thereof, and will tender shares of Equity Securities Beneficially Owned by it, as applicable, upon the consummation of such transaction. In the event that any such transaction requires the approval of the Total Company’s stockholders, the Investor agrees, if the matter is brought to a vote at a stockholder meeting, that the Investor will be present, in person or by proxy, as holders of Voting Power Stock, at all such meetings and be counted for determining the presence of a quorum at such meetings and will vote for the approval of any such transaction approved and recommended by the Board. So long as the Board continues to recommend such transaction, the Investor agrees to vote and to use reasonable efforts to cause its Affiliates, as the case may be, to vote all shares of Voting Stock Beneficially Owned by the Investor and its Affiliates (togetherin favor of such transaction and for the approval of the terms thereof and in opposition to any and all other proposals that are intended, or could reasonably be expected to delay, prevent, impair, interfere with, postpone or adversely affect the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power ability of the Company to consummate the proposals that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives are approved and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned recommended by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such processBoard.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
Appears in 1 contract
Sources: Stockholder Agreement (NXP B.V.)
Standstill. 10.1. From None of the Investors may (and after the Closingeach Investor shall cause its Affiliates and Associates that it controls, and use reasonable efforts to cause its other Affiliates and Associates, not to), without the prior written consent of the Board, the Investor hereby agrees that until such time as the earlier to occur of (x) it ceases to Beneficially Own 5% of the Total Voting Power, and (y) a Pending COC Event, the Investor shall not, and shall cause its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, not to, on its behalf, directly or indirectly:
(a) by purchase publicly propose that any Investor or otherwise, acquire, agree to acquire Qualified Stockholder or offer to acquire Voting Stock any Affiliate or direct Associate of any 104 Investor or indirect rights or options to acquire Voting Stock;
(b) Qualified Stockholder enter into a short of, or trade in, derivative securities representing the right to vote or economic benefits of Voting Stock or rights or options to acquire Voting Stock, except to the extent necessary for the Investor tointo, directly or indirectly, engage in a collared hedging transaction of the Common Stock following the conclusion of the period set forth in Section 9;
(c) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, or knowingly facilitate any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any Voting Stock or rights or options to acquire any Voting Stock, (ii) any tender or exchange offer, merger or other business combination involving the CompanyParent or propose to purchase, any of its Subsidiaries directly or assets of the Company or its Subsidiaries constituting indirectly, a significant material portion of the consolidated assets of the Company and its SubsidiariesParent or any Material Parent Subsidiary, or make any such proposal privately if it would reasonably be expected to require Parent to make a public announcement regarding such proposal;
(iiib) make, or in any “way participate in, directly or indirectly, any "solicitation” " of “"proxies” " (as such terms are used in Regulation 14A promulgated under the proxy rules of the CommissionExchange Act) to vote or written consents consent with respect to any Voting Stock Securities of Parent or become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to Parent;
(c) form, join or participate in or encourage the formation of a "group" (within the meaning of Section 13(d)(3) of the CompanyExchange Act) with respect to any Voting Securities of Parent, other than a group consisting solely of Investors and Qualified Stockholders;
(d) initiate, make or submit any stockholder proposal, whether made pursuant to Rule 14a-8 under the Exchange Act or otherwise, or, except as expressly contemplated by this Agreement or the Certificate of Designations, otherwise seek the election or appointment to, or representation on, or the nomination of any candidate to, the Board;
(e) deposit any Voting Stock in any Securities of Parent into a voting trust or subject any such Voting Stock Securities to any arrangement or agreement with respect to the voting thereof, other than any such trust, arrangement or agreement (i) the only parties to, or beneficiaries of, which are Investors and Qualified Stockholders and (ii) the terms of which do not require or expressly permit any Voting Stock that is party thereto to act in a manner inconsistent with this Agreement;
(e) initiate, propose or otherwise solicit stockholders of Parent for the voting obligations approval of one or more stockholder proposals with respect to Parent as described in Rule 14a-8 under the Investor hereunderExchange Act, or induce or attempt to induce any other person to initiate any stockholder proposal with respect to Parent;
(f) except as expressly contemplated by this Agreement in accordance with Section 3.04, seek election to or seek to place a representative on the Board or seek the removal of any member of the Board;
(g) call or seek to have called any meeting of the stockholders of Parent;
(A) solicit, seek to effect, negotiate with or provide non-public information to any other person with respect to, (B) make any statement or proposal, whether written or oral, to the Board or any director or officer of Parent with respect to, or (C) 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 Parent or the Certificate acquisition of Designationsa substantial portion of the equity securities or assets of Parent or any Material Parent Subsidiary, including a merger, consolidation, tender offer, exchange offer or liquidation of Parent's assets, or any restructuring, recapitalization or similar transaction with respect to Parent or any Material Parent Subsidiary; provided, however, that the foregoing shall not (x) apply to any discussion between or among the Investors and the Qualified Stockholders or any of their respective officers, employees, agents or representatives or (y) in the case of clause (B) above, be interpreted to limit the ability of any Investor or Qualified Stockholder, or any designee of any Investor or Qualified Stockholder, on the Board to make any such statement or proposal or to discuss any such proposal with any officer or director of or advisor to Parent or advisor to the Board unless, in either case, it would reasonably be expected to require Parent to make a public announcement regarding such discussion, statement or proposal;
(i) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board management or policies of Parent (except for (A) voting as a holder of Voting Securities in accordance with the Company terms of such Voting Securities and (B) actions taken as a director or its Subsidiariesofficer of Parent);
(gj) formpublicly disclose any intention, join plan or in arrangement inconsistent with the foregoing, or make any way participate in a “group” (within the meaning of Section 13(d) of the Exchange Act) with respect to the Company involving any of the actions items described under clauses (a) through (f) hereof;
(h) knowingly take any action which would or such disclosure privately if it would reasonably be expected to result in the Company having require Parent to make a public announcement regarding any of the actions described under clauses (a) through (f) hereofsuch intention, plan or arrangement; or
(ik) otherwise take advise, assist (including by knowingly providing or cause arranging financing for that purpose) or knowingly encourage any action inconsistent other person in connection with any of the foregoing provisions of this Section 10.1foregoing.
10.2. Notwithstanding the provisions of Section 10.1, if at any time the percentage of the Total Voting Power Beneficially Owned by the Investor and its Affiliates (together, the “Investor Parties”) decreases as a result of an Excluded Issuance, the Investor Parties may acquire in the secondary market such additional number of shares of Common Stock necessary to maintain the Total Voting Power of the Company that the Investor Parties Beneficially Owned immediately prior to such Excluded Issuance (the “Additional Shares”).
10.3. Notwithstanding the provisions of Section 10.1, (I) nothing in this Agreement shall prohibit or restrict the Investor or its directors, officers, employees, representatives and Affiliates controlled by (but not under common control with) the Investor and any other Affiliates that have received Company Confidential Information, on its behalf, from, directly or indirectly, (i) acquiring, agreeing to acquire or offering to acquire Voting Stock or direct or indirect rights or options to acquire Voting Stock (v) pursuant to the issuance of Shares contemplated by Section 1.1 of this Agreement, (w) pursuant to the conversion of the Shares in accordance with the Certificate of Designations, (x) pursuant to any dividends or distributions on such Shares or Common Stock, (y) pursuant to Section 10.2 or (z) during a Permitted Purchase Period (provided, however, the Investor Parties shall be prohibited from purchasing additional shares of Common Stock during a Permitted Purchase Period if such purchase would result in the Investor Parties Beneficially Owning 25% or more of the Total Voting Power of the Company), (ii) following the conclusion of the period set forth in Section 9, consummating, soliciting, offering, seeking to effect and negotiating with any Person regarding a transfer of the capital stock of the Company Beneficially Owned by the Investor or its permitted assigns and transferees, (iii) disclosing the Investor’s intention with respect to the voting of any Voting Stock Beneficially Owned by it so long as such voting intention is consistent with the terms of this Agreement, or (iv) from exercising its rights related to the Preferred Directors in the Certificate of Designations and this Agreement and the exercise by such Preferred Directors of their rights and fiduciary duties as directors of the Company; and (II) if the Board determines to engage in a process that could give rise to a Change of Control, the Company shall invite and permit the Investor to participate in such process on the terms and conditions generally made available to the other participants in such process; provided, however, that if the Investor elects to participate in such process, the Preferred Directors shall recuse themselves from any further Board discussions relating to such process.
10.4. For purposes of this Section 10, a “Pending COC Event” means, the earlier of (a) the date on which the Board (i) publicly recommends that the stockholders tender their shares to any Person who has publicly announced a tender or exchange offer which, if consummated, would result in a Change of Control, or (ii) fails to recommend that stockholders reject such an offer within 10 business days after its public announcement or commencement or otherwise fails to make a “stop-look-and-listen” communication to the stockholders of the Company within such time period, (b) the execution by the Company of a definitive agreement which if consummated will result in a Change of Control, or (c) the public announcement by the Company that it recommends any transaction that, if consummated, would result in a Change of Control.
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